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Vente v. Gonzales

July 22, 2005

RODOLFO VENTE VENTE, PETITIONER
v.
* ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES RESPONDENT
*SUBSTITUTED PURSUANT TO RULE 43C, F.R.A.P.



On Appeal from an Order entered before The Board of Immigration Appeals (No. A79 092 668).

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued December 7, 2004

Before: AMBRO, and VAN ANTWERPEN, Circuit Judges SHADUR,*fn1 District Judge

OPINION OF THE COURT

Rodolfo Vente Vente petitions for review of the decision by the Board of Immigration Appeals ("BIA") denying his claims for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Because the BIA's decision mischaracterized the nature of Vente's asylum claim, rendering meaningful review of that decision impossible, we grant the petition.

I. Factual Background & Procedural History

Vente is a native of Colombia. He was born in 1973 in Timbiqui, an area where the majority of the population is Afro-Colombian. Vente lived in Cali, one of the largest cities in Colombia, from 1993 to 1998. Beginning in January 1998, he lived and worked in Cisneros, a small, predominantly Afro-Columbian agricultural community.

From mid-1999 to November 2000, Vente attended meetings of a community group in Cisneros. He testified before the Immigration Judge ("IJ") that "the purpose of these meetings was to ask to the government to give some help for health purposes, also schools, to work [on] the water . . . system. Also to get certificates of the land that we were working on." Vente stated that he stopped going to these meetings because paramilitary groups said that they were going to kill those who attended and told people in the community that they should abandon their land. Vente also testified that he was shot in the leg in March 1999, but he did not know who shot him.

In December 2000, Vente received a threat from one of the paramilitary groups accusing him of collaborating with guerillas. He testified that he believed the group thought he was a collaborator because he had attended the community group meetings. According to Vente, that December a paramilitary cadre destroyed the police station in Cisneros, killed three police officers, and conducted a massacre in which nine people were killed and twelve or thirteen people were wounded. These events, coupled with the threat he had received, prompted Vente to think about leaving the area.

Vente reported the threat against him to the human rights office in Buenaventura, the region of Colombia in which Cisneros is located, on January 22, 2001. This office was unable to offer him any protection and sent him to talk to other government authorities. The district attorney's office was also unable to help Vente, so he returned home. Upon his return, his brother informed him that two men had been looking for him.

Vente then went to Cali to seek once more protection from government authorities and was again unsuccessful. He did receive some assistance in finding shelter and food from a charitable organization, and he stayed in Cali for a brief period. On February 7, 2001, Vente returned to Cisneros to see his mother, who was ill. At this time, his uncle told Vente that it was not advisable for him to stay in Cisneros for long because Vente had been sent a note from a paramilitary group saying that it was in the town and that there were other armed groups around the town. A note dated February 6, 2001, from the United Auto-Defenses of Colombia stated that the group knew Vente had returned to the area and also warned him that he would suffer consequences if he did not leave the region.

Vente returned to Cali but testified that he did not feel safe there. On February 20, 2001, he left Colombia and flew to the United States. The Immigration & Naturalization Service ("INS")*fn2 served Vente with a Notice to Appear on March 1, 2001, and he conceded removability but applied for asylum, withholding of removal, and relief under the CAT. A hearing on these claims was held before the IJ on February 21, 2002, and he rendered an oral decision denying Vente relief.

The IJ determined that Vente had not suffered past persecution even assuming that his testimony was credible regarding the threatening letters he received from paramilitary groups. The IJ further found that some parts of Vente's story were credible while others were not. For example, the IJ did not credit Vente's statement in his asylum application that paramilitary groups were still looking for him after he left Cisernos. The IJ also noted the gap of eighteen months between the time that Vente started attending the community group meetings and the time he started receiving ...


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