Unpublished Disposition, 908 F.2d 977 (9th Cir. 1990)

Ana Julia SARABIA-CHICA, Petitioner,v.U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 89-70144.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 1990.Decided July 10, 1990.

Before CHAMBERS and BEEZER, Circuit Judges, and KLEINFELD,^*  District Judge.

MEMORANDUM^** 

Sarabia-Chica appeals the denial of her petition for asylum or withholding of deportation. We affirm in part, reverse in part and remand.

FACTS

Sarabia-Chica is a 39-year-old native of El Salvador who entered the United States in 1985. She is from a valley that has been an area of heavy fighting since 1983. Both the guerrillas and the military have occupied her town. Up to the time she left El Salvador, both sides had forced her to feed and house their troops. Others in her area have been forced to do the same. She feared that if she did not comply she would be killed, though she gives no example of this happening.

Numerous members of Sarabia-Chica's family have been harassed and even murdered by one side or the other on suspicion of supporting the enemy. Most notably, her father was killed by the military in 1983 because he organized a soccer team that was falsely suspected to be a rebel training group. Her brother was threatened by the guerrillas and fled to the United States rather than join them. Other affected relatives include two cousins from a nearby town who were killed as part of a mass action by the military against the town for suspected rebel sympathies. Her uncle and cousin were killed by guerrillas for suspected military sympathies. Sarabia-Chica herself has never been directly threatened with death, though once a man wanted to bomb the house for no known reason. He was prevented from doing so by another man.

Sarabia-Chica finally fled the country when a close friend was killed by guerrillas who ambushed a bus. She left her two daughters in her mother's care and left her son with his father, since she only had enough travel money for one. The children and her mother have since fled and are all in the United States now.

Sarabia-Chica argues that this combination of events shows at least a reasonable possibility that she will be persecuted if she returns to El Salvador, either because of her help to both sides or because her family is suspect.

The IJ found Sarabia-Chica credible but found that these events failed to show a well-founded fear of persecution. He concluded that she did not show that her help to either side would make her any differently situated than other members of the community who had done the same thing. She also did not show how the harm suffered by her family and friends might put her in danger. The BIA affirmed. Sarabia-Chica appeals.

STANDARD OF REVIEW

We review the BIA's decision denying political asylum for abuse of discretion. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 n. 9 (9th Cir. 1984). However, the Board's findings of fact concerning eligibility for asylum are reviewed for substantial evidence. Rodriguez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir. 1988); Hernandez-Ortiz v. INS, 777 F.2d 509, 518 (9th Cir. 1985). Similarly, denial of an application for withholding of deportation is reviewed for substantial evidence. Blanco-Lopez v. INS, 858 F.2d 531, 533 (9th Cir. 1988). "Substantial evidence" is "more deferential than de novo review," and courts "may not reverse the BIA simply because they disagree with its evaluation of the facts." Rodriguez-Rivera, 848 F.2d at 1001. The BIA's conclusions need only be "substantially reasonable." Id.

DISCUSSION

1. Statutory Scheme

a. Asylum

To be eligible for a discretionary grant of asylum, a petitioner must be a "refugee" who demonstrates a "well-founded fear of persecution" because of "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. §§ 1158(a), 1101(a) (42) (A). To be "well-founded," the fear must be subjectively genuine, Hernandez-Ortiz, 777 F.2d at 513, and objectively "reasonable." INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).

The petitioner bears the burden of showing persecution is a "reasonable possibility." Blanco-Comarribas v. INS, 830 F.2d 1039, 1042-43 (9th Cir. 1987). To establish a "reasonable possibility," the petitioner must present credible, direct and specific evidence. Mendez-Efrain v. INS, 813 F.2d 279, 282 (9th Cir. 1987). What amounts to specific evidence depends on the facts of each case, id., but there must be some showing that the petitioner could be singled out and that the persecution would be based on one of the grounds enumerated in the statute. Blanco-Comarribas, 830 F.2d at 1042; Robello-Jovel v. INS, 794 F.2d 441, 448 (9th Cir. 1986). Conditions in a country and the experiences of others are relevant, Garcia-Ramos v. INS, 775 F.2d 1370, 1374 (9th Cir. 1985), but generalized violence alone does not establish a claim of persecution, though it may corroborate a particularized fear or threat. Arteaga v. INS, 836 F.2d 1227, 1232 (9th Cir. 1988). An actual threat need not be shown. Garcia-Ramos, 775 F.2d at 1374.

b. Withholding of Deportation

To be entitled to withholding of deportation, an alien must show that his or her "life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253(h) (1) (emphasis added). This requires the alien to show that he faces a "clear probability" of persecution, a higher standard than a "well-founded fear." INS v. Stevic, 467 U.S. 407 (1984). Once entitlement is shown, this relief is mandatory. Bolanos-Hernandez, 767 F.2d at 1282.

2. Use of House by Both Sides

a. Political OpinionSarabia-Chica first argues that the forced use of her house by both the guerrillas and the military would make her a target for persecution should she return. She argues that if either side found out, it would impute a political opinion to her for giving aid to the other side. She argues that such political persecution is likely, given the experiences of her family and friends and the general terror in her area. The government responds that persecution on this ground would not be "political" but would be a normal hazard of living in her area.

We have recognized that one who is falsely accused by either or both sides in a conflict of associating with the other side may face political persecution. See Ramirez-Rivas v. INS, No. 88-7463, slip op. 3157, 3164 (9th Cir. March 29, 1990); Maldonado-Cruz v. INS, 883 F.2d 788, 791-92 (9th Cir. 1989); Hernandez-Ortiz, 777 F.2d at 516; Bolanos-Hernandez, 767 F.2d at 1286. For this purpose, the political motives of the persecutor are determinative, not the views of the victim. Hernandez-Ortiz, 777 F.2d at 516.

The government argues that the misfortune of owning a strategically located house used by both sides does not rise to the level of political persecution, citing Zepeda-Melendez v. INS, 741 F.2d 285 (9th Cir. 1984). In that case, guerrilla troops used the petitioner's house by day and government troops used it by night. We held that Zepeda-Melendez's experience did not constitute political persecution but "merely raised the same possibility that he, like almost all others, could be subject to the violent terror in his homeland." Id. at 290.

We find Sarabia-Chica's claim distinguishable from Zepeda-Melendez. She does not rely on instances of past persecution to establish her claim. Rather, she argues that she fears future persecution should either side find out she had aided the other. Under the rule of Maldonado, were she to be accused of sympathizing with the enemy and persecuted on that ground, such persecution would be political.

b. Likelihood of Persecution

Sarabia-Chica next argues that the future persecution she fears rises to the level of "clear probability," establishing an entitlement to withholding of deportation. She bases this claim on the fact that both sides have persecuted others in her valley, particularly members of her family, when they have suspected them of sympathizing with the enemy. In 1983, her father was murdered because he was falsely suspected of supporting the guerrillas. At least two cousins were murdered by the military as part of a massive action against the town of Candelaria, which was suspected of supporting the guerrillas. The guerrillas, in turn, have demonstrated their willingness and ability to persecute suspected government supporters, by threatening her brother and murdering other cousins.

Sarabia-Chica argues that these facts, many of which are documented in the record, show that it is "more likely than not" that she would suffer a similar fate. We disagree. Sarabia-Chica's identified relatives have mostly been from outside her immediate family. No consistent identification of her family has been made by one side or the other, and she has not yet been singled out. No evidence has been presented that others have been persecuted specifically for giving food to either side and no direct connection has been made between the persecution of her relatives and Sarabia-Chica's food-giving activities. Substantial evidence supports the Board's conclusion that she failed to show it was "more likely than not" that she would be persecuted.

c. Reasonable Possibility of Persecution

Sarabia-Chica argues in the alternative that she faces at least a reasonable possibility of persecution, satisfying the "well-founded fear" requirement for asylum. We find this argument persuasive.

The "well-founded fear" standard is more generous than the "clear probability" standard and may be satisfied by a "one-in-ten" chance that the feared event might occur. Cardoza-Fonseca, 480 U.S. at 440; Blanco-Comarribas, 830 F.2d at 1042. For purposes of establishing "refugee" status, the fear need only be objectively reasonable and may be based only on future occurrences; no past threat need be shown. Cardoza-Fonseca, 480 U.S. at 440.

We have on several occasions found in fact patterns like this one that a petitioner has satisfied the lower standard while failing to satisfy the higher. See Blanco-Comarribas, 830 F.2d at 1042-43 (petitioner had "good reason" to fear being singled out); Arteaga, 836 F.2d at 1231 & n. 6 (threat by guerrillas to the petitioner insufficient to establish a withholding claim, but sufficient to satisfy asylum standards); Garcia-Ramos, 775 F.2d at 1374 (no actual threat or harassment of family need be shown for asylum claim, even if necessary for withholding claim).

The government argues that Sarabia-Chica cannot show a well-founded fear because her situation is no different than that of the general Salvadorian population. The general rule is, however, that in evaluating the reasonableness of a "well-founded fear," all facts and circumstances may be considered, including the general level of violence. See Hernandez-Ortiz, 777 F.2d at 515; Bolanos-Hernandez, 767 F.2d at 1285; Garcia-Ramos, 775 F.2d at 1374. Specific harassment need not be shown if activities that would be viewed as hostile could come to the attention of the persecuting party. Id. The petitioner need only provide testimony or evidence that is "credible, persuasive, and refers to 'specific facts that give rise to an inference that the applicant ... has a good reason to fear that he or she will be singled out.' " Blanco-Comarribas, 830 F.2d at 1042-43 (citations omitted).

Sarabia-Chica has presented such evidence. The violent circumstances of her valley are well documented. She is an "easily identifiable target because her surname is notorious" in her valley. Ramirez-Rivas, slip op. at 3171. That she has so far escaped harm is not determinative. Id. at 3173. The threats and retaliation taken against others suspected of assisting one side or another are well documented and display the ability and willingness of both sides to follow through. Were her help to one side or another to be discovered, a similar fate is not an unreasonable possibility. See id. at 3166 (father shot for giving food to guerrillas). We conclude that the Board's finding that persecution was not a "reasonable possibility" is not supported by substantial evidence.

3. Family as Social Group

Sarabia-Chica next argues that her family has been targeted for persecution by both sides and she faces persecution on account of her membership in this "social group." Because other grounds establish her eligibility for asylum, we need not examine the "social group" status of Sarabia-Chica's extended family here. Ramirez-Rivas, slip op. at 3164.

CONCLUSION

Sarabia-Chica presents evidence showing a "reasonable possibility" that she could be persecuted for having given aid to either side. Such persecution would be political. We conclude that the Board's finding that she did not show a "reasonable possibility" of political persecution is not supported by substantial evidence. The record does not establish a "clear probability" of persecution, however.

We affirm the Board's denial of the petition for withholding of deportation, reverse the Board's finding of statutory ineligibility for asylum, and remand for exercise of the Board's discretion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.