ag MARIA DEL PILAR DELGADO v. MICHAEL B. MUKASEY,1 Attorney General of the United States of America

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B.
Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales.
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05-4393-ag
Delgado v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________________________
August Term, 2006
(Argued: August 6, 2007 Decided: November 28, 2007)
Docket No. 05-4393-ag
____________________________________
MARIA DEL PILAR DELGADO,
Petitioner,
– v. –
MICHAEL B. MUKASEY,1 Attorney General of the United States of America,
Respondent.
____________________________________
Before: CALABRESI, RAGGI, and HALL, Circuit Judges.
____________________________________
Petition for review of a decision of the Board of Immigration Appeals, affirming an
Immigration Judge’s denial of Petitioner’s application for asylum, withholding of removal, and
relief under the Convention Against Torture. Petitioner, who fled her country after being
kidnapped by anti-government terrorists to set up their computer network, argues, inter alia, that
the Immigration Judge erred in finding that she failed to establish a well-founded fear of
persecution or a likelihood of torture. We hold that the Board of Immigration Appeals
improperly denied Petitioner’s application without considering whether she had a well-founded
fear of future persecution on account of imputed political opinion. We also hold that the

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agency’s denial of Petitioner’s CAT claim must be vacated because the agency appears to have
misstated the record, and the agency’s application of the law does not seem to comport with our
most recent rulings. The petition for review is GRANTED and the case is REMANDED to the
BIA, with instructions to remand to an Immigration Judge for further findings of fact.
_________________________
ALAN MICHAEL STRAUSS, (Stanley H. Wallenstein, on the 1
brief), New York, N.Y., for Petitioner. 2
3
KEITH I. McMANUS, Office of Immigration Litigation, U.S. 4
Department of Justice, (Nelson Pérez-Sosa, on the brief), for Rosa 5
E. Rodriguez-Velez, United States Attorney for the District of 6
Puerto Rico, San Juan, P.R., for Respondent. 7
_____________________________________ 8
9
CALABRESI, Circuit Judge: 10
This case raises the question of whether an asylum seeker who was kidnapped in order to 11
set up the computer network of a terrorist organization, and who, after her temporary release, has 12
refused to cooperate further with that organization, has a reasonable fear of future persecution on 13
the basis of imputed political opinion: opposition to the terrorist organization that kidnapped her. 14
Since neither the Board of Immigration Appeals (“BIA”) nor the Immigration Judge (“IJ”) 15
considered this asserted basis for relief, and since Petitioner did not have an opportunity to flesh 16
out this argument at the hearing on the merits of her claim, we remand to the BIA with 17
instructions to remand to an IJ for further findings of fact. We also remand for reconsideration of 18
Petitioner’s Convention Against Torture (“CAT”) claim. 19
I. BACKGROUND 20
Maria Del Pilar Delgado (“Petitioner” or “Delgado”), a native and citizen of Colombia, 21
arrived in the United States in April 2002. In December 2002, she sought asylum, withholding of 22
removal, and relief under the CAT. Her experiences in Colombia with the Revolutionary Armed 23

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Forces of Colombia (“FARC”), an anti-government terrorist organization responsible for large 1
numbers of civilian casualties, political murders, and forced disappearances, were the bases of 2
her claims. Removal proceedings were initiated against Petitioner in June 2003, and a merits 3
hearing took place on March 3, 2004, before IJ Brigitte Laforest. 4
Petitioner’s attorney did not attend the hearing on the merits of Petitioner’s claims. Two 5
witnesses that Petitioner’s attorney planned to call, Petitioner’s mother and brother, also did not 6
appear, apparently because Petitioner was unaware that her attorney wanted them there. The IJ 7
proceeded without them, and on direct examination she solicited the following account from 8
Petitioner. 9
In January 2002, three men and two women dressed in military clothing abducted 10
Petitioner at gunpoint and transported her to a FARC camp in the countryside. They told her that 11
she had been kidnapped because of her computer skills (at that time, Petitioner worked as a 12
computer systems expert at a bank in Colombia), and that she would be setting up the FARC’s 13
computer network. According to Petitioner’s asylum statement, the kidnappers threatened her by 14
telling her that they knew who she was, where she lived, and where she worked; they said “[t]hey 15
had been watching [her] and if [she] did not help them, [her] family would be preparing [her] 16
funeral.” Petitioner indicated she did not want to help the FARC because she “do[es] not support 17
any organization that deals in murder.” 18
After three days, the computer equipment had not arrived, so the FARC soldiers released 19
Petitioner with instructions that they would contact her again and that she must not report them to 20
the police; they reiterated that they could easily find her and that if she betrayed them she would 21
be killed. Upon her release, Petitioner fled the town where the FARC soldiers left her and went 22

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to a friend’s house in another town. The following week, Petitioner learned that a man and a 1
woman had asked Petitioner’s roommate in her original town where Petitioner was. They 2
indicated that the FARC’s computer equipment had arrived. Someone had also called her 3
mother’s house looking for her. Petitioner filed an incident report with the local authorities, but 4
“they did not give it much importance” because she was “just a civilian person.” 5
Significantly, for the purpose of our analysis, the IJ found that Petitioner was credible and 6
that her fears were subjectively genuine. Nevertheless, the IJ denied Petitoner’s application for 7
asylum and withholding of removal because Petitioner “was not kidnapped because of her 8
political opinion, . . . her race, her religion, her nationality, or her membership in a particular 9
social group.” See In re Delgado, No. A 96 241 761 (Immig. Ct. New York City Mar. 3, 2004). 10
“[F]or that reason and for that reason alone,” the IJ stated, “I find that this respondent does not 11
qualify for political asylum in the United States.” Id. The IJ also found that Petitioner was not 12
eligible for relief under the CAT because the FARC had not acted with the consent or 13
acquiescence of the government. 14
Petitioner appealed to the BIA, arguing that she had established a well-founded fear of 15
future persecution on account of her political resistance to the FARC and of her membership in a 16
particular social group (experts in computer science). She also contended that the IJ violated her 17
right to due process by failing to inform her that she could request a continuance when her 18
attorney did not appear at her hearing. In addition and in any case, she requested a remand 19
because her counsel had given her constitutionally ineffective assistance. The BIA adopted and 20
affirmed the IJ’s decision, adding that Petitioner’s testimony showed that she had been 21
kidnapped because of her computer skills, not her political opinion, and that the particular social 22

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group she described was not cognizable because its members possess only “broadly-based 1
characteristics.” See In re Delgado, No. A 96 241 761 (B.I.A. July 18, 2005), aff’g No. A 96 241 2
761 (Immig. Ct. New York City Mar. 3, 2004) (internal quotation marks omitted). The BIA 3
further found that even if the FARC targeted Petitioner on account of a protected ground, she 4
would be ineligible for asylum since kidnapping does not rise to the level of persecution. The 5
BIA denied Petitioner’s CAT claim because the record was “devoid of any evidence” from which 6
it could infer that she would suffer harm “with the acquiescence of the Colombian government.” 7
Id. The BIA did not consider Delgado’s allegations regarding ineffective assistance of counsel or 8
the IJ’s failure to notify her about her right to a continuance. This appeal followed. 9
II. DISCUSSION 10
A. Standard of Review 11
Where, as here, the BIA has adopted and supplemented the IJ’s decision, we review the 12
decision of the IJ as supplemented by the BIA. Gao v. Gonzales, 440 F.3d 62, 64 (2d Cir. 2006). 13
And because the IJ found Petitioner to be credible, we treat the events she experienced in the past 14
as undisputed facts. Id. We review the factual findings of the IJ or the BIA under the substantial 15
evidence standard, which means that “a finding will stand if it is supported by reasonable, 16
substantial, and probative evidence in the record when considered as a whole.” Secaida-Rosales 17
v. INS, 331 F.3d 297, 307 (2d. Cir. 2003) (internal quotation marks omitted). This standard 18
“require[s] a certain minimum level of analysis from the IJ and BIA,” as well as “some indication 19
that the IJ considered material evidence supporting a petitioner's claim.” Poradisova v. 20
Gonzales, 420 F.3d 70, 77 (2d Cir. 2005). We review de novo questions of law and the 21
application of law to undisputed fact. Secaida-Rosales, 331 F.3d at 307. 22

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B. Asylum and Withholding of Removal 1
Asylum is a discretionary form of relief that hinges on persecution in the applicant’s 2
country of nationality. An asylum applicant may establish eligibility by showing that she has 3
suffered past persecution or has a well-founded fear of future persecution, on account of race, 4
religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 5
1101(a)(42). “An applicant who has been found to have established such past persecution shall 6
also be presumed to have a well-founded fear of persecution on the basis of the original claim.” 7
8 C.F.R. § 208.13(b)(1). Once an applicant has established eligibility, however, it remains within 8
the Attorney General’s discretion to deny asylum. 9
Requests for withholding of removal under 8 U.S.C. § 1231(b)(3) often rely on the same 10
grounds as asylum and depend on the same types of proof, but withholding of removal is a 11
mandatory form of relief, and it requires the applicant to clear a higher bar. Specifically, if an 12
applicant shows that “it is more likely than not” that her “life or freedom would be threatened in 13
the proposed country of removal on account of race, religion, nationality, membership in a 14
particular social group, or political opinion,” the Attorney General must withhold removal. 8 15
C.F.R. § 1208.16(b). 16
The applicant bears the burden of demonstrating eligibility for asylum and withholding of 17
removal, but an applicant’s testimony alone may be sufficient to carry this burden. 8 C.F.R. §§ 18
208.13(a), 208.16(b). We also recognize that “the IJ has an affirmative obligation to help 19
establish and develop the record in the course of such proceedings,” Secaida-Rosales, 331 F.3d 20
at 306, especially when, as here, an alien is unrepresented by counsel, United States v. Copeland, 21
376 F.3d 61, 71 (2d Cir. 2004). 22

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2 Petitioner further argues that she has demonstrated a well-founded fear of future persecution on
account of membership in a particular social group: Colombian computer experts or “systems
engineers.” In fact, Petitioner has not shown that the characteristics of her claimed social group
satisfy the test that the BIA set forth in Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (B.I.A.
1985). Specifically, Petitioner has offered no argument as to why computer expertise is a
characteristic “that the members of the group either cannot change, or should not be required to
change because it is fundamental to their individual identities or consciences.” Id. at 233.
Accordingly, we need not concern ourselves with whether the BIA correctly interpreted Gomez v.
INS, 947 F.2d 660, 664 (2d Cir. 1991). See Hong Ying Gao v. Gonzales, 440 F.3d 62, 69-70 (2d
Cir. 2006) (acknowledging, in discussing Gomez, that “[t]he general law in our Circuit on
particular social groups is less than clear,” and declining to “decide the exact scope of Gomez”).
3 Because the IJ appears to have misunderstood Petitioner’s imputed political opinion claim, he
rejected her asylum claim on that ground alone and did not discuss her attempt to link the
FARC’s action to the government except in the context of her CAT claim. Our own discussion
of that latter point, see infra at [ ], applies equally to all Petitioner’s claims for relief from
removal. See, e.g., Pavlova v. INS, 441 F.3d 82, 91 (2d Cir. 2006); Ivanishvili v. U.S. Dep’t of
Justice, 433 F.3d 332, 342 (2d Cir. 2006).
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Petitioner argues that she has demonstrated a well-founded fear of future persecution on 1
account of (1) the political opinion that the FARC has now imputed or will impute to her upon 2
her return,2 and (2) the government’s unwillingness to control the FARC, exposing her to likely 3
violent retaliation.3 We have “accept[ed] the proposition that an imputed political opinion, 4
whether correctly or incorrectly attributed, can constitute a ground of political persecution.” 5
Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005) (internal quotation marks omitted). 6
The IJ did not consider this argument, however. 7
At the hearing on the merits of Delgado’s claims, the IJ (who decided to proceed with the 8
hearing without Delgado’s attorney) asked no questions regarding Delgado’s political opinion or 9
the political opinion that her kidnappers might impute to her. In rendering an oral decision, the IJ 10
dealt with Delgado’s fear of future persecution entirely in the abstract, and dismissed that fear 11
with a single, conclusory sentence. (“I . . . cannot find that [Delgado] has a well-founded fear of 12

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persecution on account of one of the five enumerated grounds in the [INA].”) The BIA affirmed, 1
reasoning (1) that because Petitioner testified that the FARC kidnapped her on account of her 2
computer expertise, “the record does not support a conclusion that her abuse was premised upon 3
a political opinion . . . imputed to her,” and (2) that kidnapping does not rise to the level of 4
persecution, so Petitioner could not have a well-founded fear of persecution. The BIA’s 5
determination rests on two propositions, both legally untenable. 6
1. Fear of Future Persecution on the Basis of Imputed Political Opinion 7
The first proposition is that persecution on account of one ground precludes a well- 8
grounded fear of future persecution on account of another. Delgado did testify, as the BIA 9
emphasized, that the FARC targeted her because of her knowledge of her computers, a reason 10
unrelated to political opinion. But she also testified that she would be targeted by the FARC in 11
the future for betraying them, which, when coupled with the government’s unwillingness to 12
control the FARC, could well qualify as persecution for an imputed political opinion (opposition 13
to the FARC). The FARC soldiers who kidnapped Petitioner told her that they would kill her if 14
she did not collaborate with them. Petitioner clearly viewed her flight as a refusal to cooperate 15
with the FARC, and it is reasonable to infer that the FARC would reach the same conclusion. 16
Petitioner also stated that she is opposed to the FARC (“I do not support any organization that 17
deals in murder”) and that she “belonged to a political party,” a fact that she feared the FARC 18
would discover. 19
Given this evidence, it did not necessarily follow that, because Petitioner’s original 20
kidnapping had not been politically motivated, her refusal to provide further technological 21
assistance did not support a well-founded fear of future persecution on account of an imputed 22

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political opinion. Cf. Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994) (“[T]he conclusion that a 1
cause of persecution is economic does not necessarily imply that there cannot exist other causes 2
of the persecution.”). Thus, the BIA erred in not discussing Petitioner’s imputed political 3
opinion claim. Shu Ling Ni v. BIA, 439 F.3d 177, 178, 180 (2d Cir. 2006) (per curiam). 4
2. Kidnapping as “Persecution” 5
The second basis for the BIA’s determination is equally problematic. The BIA 6
concluded that “the harm [Delgado] suffered simply does not rise to the level of persecution,” 7
noting, in a parenthetical summary of Matter of V-T-S-, 21 I. & N. Dec. 792, 798 (B.I.A. 1997), 8
that “kidnaping generally does not qualify as persecution.” “Accordingly,” the BIA concluded, 9
Delgado “has failed to demonstrate that she possesses a well-founded fear of future persecution 10
in Colombia.” This statement assumes, first, that the only type of persecution Petitioner fears is 11
the type of harm she suffered before – kidnapping – and, second, that no kidnapping Petitioner 12
might experience could constitute persecution. Both assumptions are flawed. 13
First, Petitioner credibly testified that she fears much more than kidnapping. She said she 14
was “marked . . . for death” and that she would be killed for refusing to collaborate. State 15
Department reports in the record confirm that the FARC did not hesitate to use murder to 16
consolidate its power and enforce discipline, frequently killing both civilians suspected of 17
cooperating with rival political groups and deserters from its own ranks. 18
Second, V-T-S- does not conclude that kidnapping generally does not qualify as 19
persecution because the harm inflicted is not sufficiently severe. To the contrary, V-T-S- 20
acknowledges that “[k]idnapping is a very serious offense.” Id. at 798. What V-T-S- emphasizes 21
is that “[s]eriousness of conduct” is not, by itself, “dispositive” of persecution; “the critical issue 22

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is whether a reasonable inference may be drawn from the evidence . . . that the motivation for the 1
conduct was to persecute the asylum applicant on account of race, religion, nationality, 2
membership in a particular social group, or political opinion.” Id. Thus, when confronted with a 3
credible fear of kidnapping, the agency should proceed to consider whether the motivation for 4
kidnapping is one indicative of persecution. See generally Ucelo-Gomez v. Gonzales, 464 F.3d 5
163, 167 (2d Cir. 2006) (per curiam) (faulting agency failure to consider petitioners’ claim of 6
threatened kidnapping). The agency failure to do so in this case, where Petitioner’s fear of 7
kidnapping was accompanied by an objectively reasonable fear of death, was error. 8
Because of these legal flaws in the agency’s review of Petitioner’s claim of future 9
persecution, its ruling cannot stand. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149, 156-57 (2d 10
Cir. 2003), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 11
(2d Cir. 2007). This is not a case in which we can be confident that, absent these errors, the 12
agency would reach the same result upon reconsideration, and thus we must remand. Li Hua Lin 13
v. U.S. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir. 2006). To the extent there is a need for further 14
development of the factual record, a task outside the scope of the BIA’s authority, see 8 C.F.R. § 15
1003.1(d)(3)(i), (iv), we instruct that on remand, the BIA send this case to an IJ for further 16
findings of fact. 17
* * * * * 18
The IJ and the BIA conducted no particularized analysis as to whether Delgado met the 19
standard for withholding of removal under the INA. Rather, the agency reasoned that an 20
applicant who cannot meet the standard for asylum cannot meet the higher standard for 21
withholding of removal. Because we are remanding this case for further consideration of 22

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Delgado’s asylum claim, Delgado’s withholding of removal claim must be reconsidered as well. 1
Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 407 (2d Cir. 2005). 2
C. CAT Relief 3
In addition to applying for asylum and withholding of removal under the INA, Petitioner 4
applied for withholding of removal under the Convention Against Torture and Other Cruel, 5
Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, S. Treaty Doc. No. 6
100-20, 1465 U.N.T.S. 85. The Attorney General must withhold removal under the CAT if an 7
applicant shows that it is “more likely than not” that a petitioner would be tortured if removed to 8
the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). CAT relief does not require a nexus 9
to a protected ground. 10
“Torture” under the CAT is “an extreme form of cruel and inhuman treatment,” which is 11
defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally 12
inflicted” for purposes such as interrogation, punishment, intimidation, coercion, or 13
discrimination, “when such pain or suffering is inflicted by or at the instigation of or with the 14
consent or acquiescence of a public official or other person acting in an official capacity.” 8 15
C.F.R. § 1208.18(a). A public official has “acquiesced” when, “prior to the activity constituting 16
torture,” the public official “ha[s] awareness of such activity and thereafter breach[es] his or her 17
legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). 18
“Acquiescence” does not require official “consent or approval”; it “requires only that government 19
officials know of or remain willfully blind to an act and thereafter breach their legal 20
responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 170-71 (2d Cir. 2004). 21

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4 Again, the IJ has inexplicably assumed that the type of harm Petitioner fears she will encounter
on her return is the same type of harm that she encountered before: kidnapping, with no physical
abuse. In fact, Petitioner testified that she feared she would not only be kidnapped again, but
killed.
5 The requirement of government involvement or acquiescence applies equally to a petitioner’s
claims of asylum and withholding of removal. See, e.g., Pavlova, 441 F.3d at 91; Ivanishvili,
433 F.3d at 342.
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Delgado argues that she is entitled to withholding of removal under the CAT because, if 1
removed to Colombia, she is likely to be tortured by the FARC; she claims, moreover, that “she 2
can expect no protection from her government.” The IJ denied this claim, finding that Petitioner 3
had failed to meet the standard for CAT relief because “the actions that took place in Colombia 4
against [Petitioner] were not done by government officials or anyone acting with the consent or 5
acquiescence of government officials.”4 The BIA affirmed, stating only that “the record is 6
devoid of any evidence from which we could infer that any harm the [Petitioner] might suffer 7
upon return would be with the acquiescence of the Colombian government.” While we offer no 8
opinion as to whether Petitioner’s CAT argument should succeed, we remand the issue for 9
reconsideration because the BIA appears to have misstated the record, and the agency’s 10
application of the law with respect to government acquiescence in third-party actions does not 11
seem to comport with our most recent rulings on that point.5
12
Contrary to the BIA’s characterization of the record, Petitioner testified that several days 13
after her kidnapping she filed a complaint with the local authorities, but they did not give her 14
complaint “much importance” because she was “just a civilian person.” In addition, and 15
significantly, a 2002 report by Human Rights Watch in the record indicates that, “[w]ith the 16
stated goal of furthering peace talks,” the government had allowed the FARC “to maintain 17

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control over a Switzerland-sized area” of the country. Whatever weight this testimonial and 1
documentary evidence warranted, its existence precluded the BIA from concluding that “the 2
record is devoid of any evidence” to support a claim of government acquiescence in the FARC’s 3
retaliatory violence. See generally Khouzam v. Ashcroft, 361 F.3d at 171 (holding that 4
acquiescence may be shown by evidence that officials knew of private parties’ abusive actions 5
“and thereafter breach[ed] their legal responsibility to prevent [such actions]”). Where the IJ and 6
BIA “ha[ve] given reasoned consideration to [a] petition, and made adequate findings,” they are 7
not required “expressly to parse or refute on the record each individual argument or piece of 8
evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) 9
(internal quotation marks omitted). But failure to consider material evidence in the record is 10
ground for remand. Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d Cir. 2004). Such a failure 11
occurred here. And the fact that “a hypothetical adjudicator, applying the law correctly, might 12
also have denied” a CAT claim is “no[] excuse[]” for a failure to consider the evidence. Jin Shui 13
Qiu, 329 F.3d at 149; see generally Poradisova, 420 F.3d at 77 (“We . . . require some indication 14
that the IJ considered material evidence supporting a petitioner’s claim.”). 15
In the interest of judicial economy, we also note that the agency’s failure to mention the 16
material evidence in support of Petitioner’s CAT claim may well indicate the application of an 17
inappropriately stringent standard on the part of the agency. It appears that the BIA and IJ 18
required Petitioner to show the government’s affirmative consent to torture. This would 19
constitute legal error and would by itself be grounds for remand – for a showing of willful 20
blindness suffices to support a CAT claim. See Rafiq v. Gonzales, 468 F.3d 165, 166 (2d Cir. 21

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2006) (per curiam) (remanding a CAT claim to the BIA because the IJ “failed to acknowledge 1
[Khouzam] as controlling authority” and did not appear to apply the correct legal standard). 2
D. Claims Relating to Petitioner’s Lack of Counsel at Her Removal Hearing 3
Delgado has argued on appeal that the IJ erred by not informing her of her right to seek a 4
continuance when her counsel failed to appear at her merits hearing. Delgado characterizes the 5
IJ’s inaction as an abuse of discretion and a violation of due process. She also claims that the 6
BIA should have remanded her case to the IJ on the basis of ineffective assistance of counsel. 7
Since we now remand all of Petitioner’s claims to the BIA, with orders to remand the 8
proceedings to the IJ for further factfinding, these alleged errors have been rendered harmless. 9
III. CONCLUSION 10
Having considered all of the arguments that Petitioner has raised, we GRANT the 11
petition for review and REMAND the proceedings to the BIA. We instruct the BIA to remand to 12
an IJ for further findings of fact. 13

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