Case: 11-14636    Date Filed: 02/07/2013    Page: 1 of 13

                                                            [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-14636
                         Non-Argument Calendar
                       ________________________

                         Agency No. A079-494-556

ALBERTO MUNOZ ERAZO,
BETTY SEPULVEDA SALAZAR,

                                                  Petitioners,

                                   versus

U.S. ATTORNEY GENERAL,

                                                  Respondent.

                      __________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                        _________________________

                             (February 7, 2013)

Before DUBINA, Chief Judge, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

     Petitioners Alberto Munoz-Erazo and his wife, Betty Sepulveda Salazar,

natives and citizens of Colombia, seek review of the Board of Immigration
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Appeals’ order of removal and order reversing the immigration judge’s grant of

asylum. At the removal hearing, Munoz admitted the allegations in the notice to

appear, conceded removability, and sought asylum. The IJ granted asylum but

never made an explicit finding of removability. On appeal, Munoz asserts that the

BIA lacked jurisdiction to independently enter a removal order because the IJ did

not make an initial finding of removability. He and his wife also claim that the

BIA failed to follow this court’s precedent in determining that they had not

suffered past persecution and that the BIA incorrectly reviewed the IJ’s factual

findings and made independent findings of fact. They further contend that the BIA

erred in finding that they were able to relocate within Colombia.

      Because the BIA set aside the IJ’s grant of asylum by exercising plenary

review, a standard which its own regulations proscribe, we grant the petition and

remand the case to the IJ for further proceedings consistent with this opinion.

Furthermore, we hold that the BIA does not have the independent statutory

authority to issue an order of removal in the first instance.

                                           I.

      We review jurisdictional questions de novo. Amaya-Artunduaga v. U.S. Att’y

Gen., 

, 1250 (11th Cir. 2006).               We also review de novo

constitutional claims and questions of law. Mohammed v. Ashcroft, 

,

1247 (11th Cir. 2001). We review only the BIA’s decision, “except to the extent



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that it expressly adopts the IJ’s opinion.” Nreka v. U.S. Att’y Gen., 

,

1368 (11th Cir. 2005) (internal quotation marks omitted).

                                          II.

      The IJ, following an evidentiary hearing, found that Munoz was credible and

that he merited asylum because he had shown past and future persecution. The

facts, as found by the immigration judge and as set forth in the exhibits submitted

by the parties, are as follows.

      Munoz worked as an engineer in Colombia. As an engineer, he directed the

construction of highways and had access to equipment that could be used by

groups on both sides of the armed struggle in Colombia. See Immigration J. Op. at

2.

      One of Munoz’s highway-construction projects took place in a region of

Colombia controlled by the Autodefensas Unidas de Colombia (commonly known

as the AUC) and other right-wing paramilitary groups. The two largest guerrilla

forces in Colombia—the Fuerzas Armadas Revolucionarias de Colombia

(commonly known as the FARC) and the Ejército de Liberación Nacional

(commonly known as the ELN)—are left-wing organizations opposed to the AUC

and other paramilitary forces. The U.S. Department of State considers the FARC

and the ELN “terrorist organizations,” and these guerrilla forces are known for

numerous atrocities, such as “political killings.”         2008 U.S. DEP’T   OF   STATE



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COUNTRY REP. ON HUM. RTS. PRACS.: COLOM. 1. Indeed, in July of 1993, Munoz’s

brother-in-law was shot and killed by the FARC, apparently for his conservative

political views. See Admin. R. at 582.

      Like his brother-in-law, Munoz was a political conservative. He was also a

member of the Colombian Association of Engineers, an organization which noted

that its members were in “imminent danger of death or threats from the guerrilla

groups who accuse them of being collaborators of the auto-defense groups and

paramilitary groups.” Immigration J. Op. at 2.

      On December 18, 1996, someone shot at and into Munoz’s house in Puerto

Barrios.   The shooting occurred because Munoz “had conservative roots

politically, and this was contrary to the guerrilla groups.” Immigration J. Op. at 5.

The FARC demanded that Munoz immediately depart Puerto Barrios because he

had ties to a political party. See Admin. R. at 350, 352. Within two days of the

attack, and with his firm’s permission, Munoz fled to Cali, where his family

resided. He stayed there for a few weeks, until, again with his firm’s permission,

he moved to Ibagué in January of 1997. All went well in Ibagué until October 10,

1998, when his wife received a call from one of the guerrilla groups threatening

Munoz’s life.

      Munoz again fled to Cali. After requesting another transfer, his firm agreed

and transferred him to Pereira. But in May and June of 1999, Munoz received yet



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more death threats. To make matters worse, by then the paramilitary forces also

demanded that Munoz disclose information on his construction projects. Fearing

for his life, Munoz complied with these demands.

       After Munoz received the death threats in Pereira, his firm transferred him

yet again, this time to Puerto López. His wife and children moved back to Cali

without him. From mid-July of 1999 to January of 2000, Munoz worked in Puerto

López, while his family remained in Cali. He personally received no threats in

Puerto López, but in February of 2000, his firm—which had continued to receive

calls threatening Munoz—transferred him again. Munoz moved to El Banco,

where he was project director of construction for motorways, and therefore

“squarely between the groups that were in opposition to one another.”

Immigration J. Op. at 4. 1

       In March of 2001, the death threats began again. By March 22, 2001, the ELN

apprised Munoz of his newfound notoriety and told him in several calls that he would

be killed or kidnapped: the ELN now considered him a “military objective” because

it believed he was collaborating with the paramilitary forces. Immigration J. Op. at 3–

4.2


       1
         At some point, additional death threats from the ELN forced Munoz to move from San
Juan de Pasto to a location near Bogotá. Immigration J. Op. at 5. It is not clear when Munoz
moved to San Juan de Pasto, or when the threats occurred, but this uncertainty does not affect the
BIA’s refusal to apply the clear error standard on review.
       2
         As noted earlier, Munoz told the paramilitary forces about the projects that he was
working on because they “told him to” disclose the information. The IJ found that Munoz acted


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       By now at wit’s end, Munoz filed a police report on March 28, 2001. He soon

quit his job, moved to Cali, and decided to flee Colombia. He left in April for the

United States, and his family departed in May. They all traveled on tourist visas,

which soon expired. Munoz did not return to Colombia and eventually sought

asylum.

       The IJ found Munoz credible, explaining that he “made every effort to testify

honestly and accurately to the best of his recollection.” Immigration J. Op. at 6–7.

Given Munoz’s harrowing history, the IJ also found—not surprisingly—that Munoz

had shown past and future persecution and therefore merited political asylum.

       On appeal, the BIA reversed the IJ’s grant of asylum, in part because it

believed that Munoz had not shown past persecution. Though the BIA said that it

was reviewing the IJ’s factual determinations for “clear error,” it did not really

perform any deferential review. Instead, it reviewed the record de novo to reach its

own findings about past and future persecution.

                                            III.

                                             A.

       When the government sought to remove Munoz as an overstay, he sought

asylum as a refugee. See 8 U.S.C. § 1101(a)(42)(A) (defining “refugee” as “any

person who is outside any country of such person’s nationality . . . and who is

in the way one might expect of someone “threatened by various superior force[s].” Immigration
J. Op. at 4.


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unable or unwilling to return to . . . that country 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”). Past persecution does not

require actual physical injury; for example, attempted murder, if proven, will

suffice. See Sanz de Santamaria v. U.S. Att’y Gen., 

, 1008-09 (11th

Cir. 2008) (stating that past persecution does not require serious physical injury

“where the petitioner demonstrates repeated threats combined with other forms of

severe mistreatment”). Given the facts outlined above—a shooting of his house

followed by persistent death threats over a period of years in different cities by

opposing military groups in Colombia’s armed struggle—Munoz asserted that he

had faced persecution in Colombia and deserved asylum. The IJ agreed.

      The BIA took a different view and set aside the grant of asylum, finding that

Munoz had “not sufficiently demonstrate[d] past persecution or a well-founded fear of

future persecution.” BIA Op. at 3. The BIA, however, did so by reshaping the facts

in violation of its own limitations on appellate review.

      Under its own regulations, the BIA cannot “engage in de novo review of

findings of fact determined by an immigration judge.” 8 C.F.R. § 1003.1(d)(3)(i).

Except for the ability to take “administrative notice of commonly known facts,” the

BIA cannot “engage in factfinding in the course of deciding appeals.”          

the BIA did exactly that.



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       For instance, in its opinion, the BIA stated that the 1996 shooting could not

show past persecution because Munoz “stated that he did not know who attacked

him.” BIA Op. at 3. However, the IJ found that Munoz’s house was targeted because

he “had conservative roots politically, and this was contrary to the guerrilla groups.”

Immigration J. Op. at 5. This finding by the IJ at the very least strongly implies that

the guerrilla groups attacked Munoz’s house. The BIA, without acknowledging or

mentioning this language from the IJ’s order, concluded that there was no evidence

that guerrilla groups shot at Munoz’s house. The BIA, moreover, spun the limited

evidence it chose to discuss. The BIA concluded, by citing to Munoz’s sworn

statement, that he did not know who attacked his house. To be sure, in his statement,

Munoz acknowledged that he did not know who attacked his house at the time of the

shooting, but, in the same sworn statement, explained that he later discovered that the

FARC was responsible. Admin. R. at 540–41. Thus, the BIA’s substituted factual

finding itself is not correct.3

       The BIA performed similar analytical contortions elsewhere. By law, where an

alien shows past persecution there is a presumption that the alien has a well-founded

fear of persecution. See Arboleda v. U.S. Att’y Gen., 

, 1223 (11th Cir.

2006) (per curiam) (“A showing of past persecution creates a presumption of a ‘well-


       3
          The IJ noted several times that Munoz believed the threats and attacks came from the
guerrilla groups. See Immigration J. Op. at 2, 3, 4, 5, 7. The BIA’s opinion is devoid of any
reference to these passages.


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founded fear’ subject to rebuttal . . . .”) (internal quotation marks omitted). The

government can overcome this presumption, however, if it can show by a

preponderance of the evidence that the alien “could avoid future persecution by

relocating to another part of the applicant’s country of nationality.” 8 C.F.R. §

208.13(b)(1)(i)(B). See also Antipova v. U.S. Att’y Gen., 

, 1265 (11th

Cir. 2004) (“[I]f an applicant has established past persecution, the [government] can

overcome the presumption of future persecution by showing that she could avoid

future threats by relocating within the country . . . .”). The government must also

show that it would be reasonable, “under all the circumstances,” to “expect the

applicant” to relocate. See 8 C.F.R. § 208.13(b)(2)(ii).

      Here, the BIA held that Munoz “was able to live and work unharmed and

without threats in Puerto López and in Cali.” BIA Op. at 4. The IJ, however,

apparently made no factual finding about relocation in the asylum context. The BIA

has recognized that, when an IJ makes no decision on relocation, it must remand the

case to the IJ because of its “limited fact-finding abilities.” See Matter of D-I-M-, 24 I.

& N. Dec. 448, 451 (BIA 2008). “If the BIA wanted specific factual findings on these

issues, then the governing regulations required it to remand the case to the IJ instead

of making its own factual determinations.” Rodriguez v. Holder, 

, 1174




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(9th Cir. 2012). When it concluded that Munoz could relocate, the BIA ignored the

limitations placed on its review.4

       The BIA’s relocation decision, furthermore, is lacking on its own terms. As

noted, the government must show that it is reasonable to expect the alien to relocate.

This reasonableness analysis requires the consideration of several factors, like the

administrative, economic, or judicial infrastructure of the region, and the social and

cultural constraints on relocation. See 8 C.F.R. § 208.13(b)(3). The IJ made no factual

findings on these matters, and the BIA did not mention them either. The BIA’s

analysis, therefore, “is incomplete,” and, because it failed to apply the proper factors,

it committed “reversible error.” 

.

       The BIA’s error as to relocation is further compounded by three facts. First,

although Munoz lived in Cali without death threats, he lived there for only a few

weeks (from mid-December 1996 to January 1997). That span is hardly a long one.

Second, Munoz lived in Puerto López while his family lived in Cali. Familial ties are

a consideration that should be taken into account when deciding the reasonableness of

relocation, yet the BIA ignored this fact in its threadbare analysis. See Sanchez v. U.S.


       4
          To be fair, the IJ did appear at one point to find that Munoz could relocate for
“withholding of removal” purposes. That being said, the IJ made no similar decision about
asylum, and his language in the “withholding of removal” section is unclear. See Immigration J.
Op. at 10 (“The Court does not find that the respondent’s application for withholding is clearly
approvable because . . . the Court does not find that it is more likely than not that the respondent
would be tortured if he was returned to his country simply based upon the fact that there were
areas that he did go to that he did not receive calls in.”). As explained in the text, if the BIA
thought that more findings were needed, it should have remanded the matter to the IJ.


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Att’y Gen., 

, 1238 n.14 (11th Cir. 2007) (“In assessing reasonableness,

the IJ should consider . . . social and familial ties.”). Third, and maybe most

important, Munoz received threats while residing in not one, not two, not three, but

four different cities (Puerto Barrios, Ibagué, Pereira, and El Banco). It is difficult to

see how the BIA could have thought, on purportedly deferential review, that things

would be better for Munoz if he moved to a fifth or sixth city.

      The BIA committed one final glaring error as factfinder when it concluded that

Munoz had not shown a well-founded fear of future persecution. As we have said, a

well-founded fear of future persecution can be established by a reasonable possibility

of personal persecution that cannot be avoided by relocating within the subject

country. See 

C.F.R. § 208.13(b). See also Mohammed v. U.S. Att’y

Gen., 

, 1351 (11th Cir. 2008) (Wilson, J., dissenting). The alien’s fear

of persecution is well-founded if it is “subjectively genuine and objectively

reasonable.” Sanz de 

. The IJ explicitly found that

Munoz “had satisfied the standards set out in the refugee definition [in] Fonseca.”

Immigration J. Op. at 10. That is a roundabout way of saying that the IJ found that

Munoz had a well-founded fear of persecution, for INS v. Cardoza-Fonseca, 

, 

(1987), is the case that defines a well-founded fear of future

persecution.    Indeed, the Supreme Court emphasized that “well-founded fear of

persecution” is not a stringent standard: “There is simply no room . . . for concluding



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that because an applicant only has a 10% chance of being shot, tortured, or otherwise

persecuted, that he or she has no ‘well-founded fear’ of the event happening.”

, 107 S. Ct. at 1217.

       The BIA nonetheless disregarded the IJ’s “well-founded fear of persecution”

finding, decided that the record did not “sufficiently reflect that the guerrilla groups

have a continued interest in” Munoz, and concluded that there was no reasonable

possibility of personal persecution. BIA Op. at 4. The BIA never explained why it

could scour the record to engage in such factfinding. Nor did it say why, given the

IJ’s finding, it could decide that Munoz had not shown a reasonable possibility of

personal persecution.

       The BIA’s newfound interest in factfinding has not gone unnoticed by the

federal courts. Indeed, on January 4, 2013, this Court issued an opinion in Zhu v.

United States Atty. General, 

(11th Cir. Jan. 4, 2013), vacating and

remanding a BIA decision because the BIA engaged in unauthorized factfinding. See

BIA can review the IJ’s factual findings, including predictions about the

possibility of future events, only for clear error”).

       In this case, as in Zhu, the BIA, contrary to its own regulations, engaged in de

novo review of the IJ’s factual findings. This was error.




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                                              B.

      The BIA also issued an order of removal in the first instance. That, too, was

error. The BIA does not have independent statutory authority to issue an order of

removal in the first instance. See 8 U.S.C. § 1229a(a)(1) (it is the IJ who “shall

conduct proceedings for deciding the inadmissibility or deportability of an alien”); 8

U.S.C. § 1229a(c)(1)(A) (“[a]t the conclusion of the [removal] proceeding the [IJ]

shall decide whether an alien is removable from the United States”). See also Rhodes-

Bradford v. Keisler, 

, 81 (2d Cir. 2007); Sosa-Valenzuela v. Gonzales, 

, 1145 (10th Cir. 2007); James v. Gonzales, 

, 514 (5th Cir.

2006); In re I-S & C-S-, 24 I. & N. Dec. 432, 434 (BIA 2008).

                                              IV.

      For the aforementioned reasons, we grant the petition for review and remand

this case for further proceedings consistent with this opinion and consistent with our

recent decision in Zhu.

      PETITION GRANTED, and CASE REMANDED.




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