Unpublished Disposition, 914 F.2d 261 (9th Cir. 1984)

Manuel Ayala-Martinez petitions this court for review of the BIA's decision 1) affirming the Immigration Judge's denial of his motion for a change of venue and 2) affirming the IJ's decision denying him withholding of deportation and eligibility for asylum. We do not reach the procedural issue because we conclude that Ayala is entitled to the substantive relief for which he petitions.

FACTS

Ayala fled El Salvador in December of 1983 and entered the United States in Nogales, Arizona. He was seventeen at the time. At his hearing before the IJ on September 18, 1984, Ayala testified about alleged government or death squad persecution of him and various members of his family and about the persecution of an organization for which he worked from 1981 until 1983, the Green Cross.

The incidents involving him and his family occurred in 1979. He was thirteen when these events occurred. The first incident occurred in mid-1979. Ayala wanted to apply for a job in a cardboard factory. First, however, he had to obtain an identification card from the office of the mayor permitting him to work. A soldier approached him and accused him of having a brother in the guerrillas. Ayala repeatedly denied the accusations, even as the soldier became more insistent. The soldier then forced Ayala to lie face down, tied his hand behind his back, kicked him, and then took him into another room. In that small room, he interrogated him while hitting him in the back of his neck with the butt of a rifle. Three other soldiers entered the room. The first soldier accused Ayala of being a guerrilla, whereupon another soldier took out a machete, slashed Ayala, and hit him with the weapon. One of the soldiers, who had tried to arrest Ayala once before, threatened to come by one night and kill him. During a moment when the soldiers had left the room due to a sergeant's order, the mayor's secretary untied him and let him go home.

Later on in 1979, a second incident occurred, according to Ayala's testimony. National Guardsmen arrived in town, looking for Ayala's brother-in-law, Minor, because government informants had told them that Ayala's brother-in-law was a guerrilla. Ayala heard the following story from a person who witnessed the events while he (the person) was hiding: The guardsmen undressed Minor down to his shorts, tied a rope around his neck, and dragged him over rocks and cactus needles. About a quarter-mile outside of town, they began to torture and beat him. They pulled out his fingernails one by one, urging him to confess to being a guerrilla. When it became clear that he would not confess, they shot him through the throat and killed him. Ayala, Ayala's father, and three others later carried away the body.

The next to die was Ayala's father. Ayala testified that he had been told that one day, while his father was on his way to see some cattle that he was going to buy, soldiers stopped the father and asked him about a person named Ozmin Alberto, whom they believed was Ayala's brother (the father's son). The father's body was found by Ayala's little brother. He had been killed with a machete, which, according to Ayala, signified that the killing was the work of the army or death squads in that area. A bag of nails was planted next to the body. The nails were there, according to Ayala, because "they"--apparently the murderers--were trying to frame the father as a person delivering materials to the guerrillas for use in making bombs. The day after his father was buried, Ayala fled to another part of El Salvador. He lived with his sister there for about one month, and then he returned to the village where his father died. Ayala lived in the village for another year, during which things were relatively calm, because, he testified, different soldiers were stationed there. He was fourteen years old during that year.

In 1981, at the age of fifteen, Ayala began working for the Green Cross as a paramedic. He worked for the organization until the day he fled in December of 1983. The headquarters of the Green Cross was a shelter in Santa Tecla. Ayala lived in the shelter while he worked for the Green Cross, but made some visits to his village 85 miles (136 kilometers) away. Ayala testified that the Green Cross provided medical assistance to all injured persons regardless of ideology. He testified that the Red Cross was not truly neutral in that it turned guerrillas over to the authorities.

Ayala helped to evacuate people from battle sites and to administer first aid.¹  Some of Ayala's testimony regarding the Green Cross concerns dangerous and heroic activities undertaken by the group, but danger that results from entering battle zones does not necessarily constitute danger from persecution.

Much of the Green Cross testimony, does, however, bear on the issue of political persecution. Ayala testified that late one night in 1981, he was taking a sick man to the shelter when men approached him, ordered him to lie on the ground, and interrogated him. Since there were other people there, who said he was doing nothing wrong, the men let him go. Before they let him go, they said that they would kill him if they ever found him out that late (2:00 a.m.) again. On cross-examination, Ayala testified there was no curfew law at the time.

Ayala stated that one day national soldiers raided the Green Cross shelter, jeered the workers there, and called them subversives. They searched for weapons or other incriminating materials. Finding nothing, they took down the name of every Green Cross worker, including Ayala. On a different occasion, two co-workers of Ayala's in the Green Cross, Raul and Carlos, were reported to the army by neighbors and shot. As time passed, security forces increased their accusations that the Green Cross was infiltrated by and sympathetic to the guerrillas. On September 8, 1983, another Green Cross worker, Miguel Angel, was arrested by the army. The soldiers repeatedly beat him, attempting to get him to confess that he was a member of a guerrilla organization. He wouldn't confess; finally he was imprisoned. Ayala stated that the danger of Green Cross workers' being disappeared increased in the period during which he was preparing to leave. By the same token, the organization got smaller as its ranks dwindled and its "territory" shrunk.

Ayala arranged in August to have smugglers take him from the country. In December, he left.

DISCUSSION

To establish the right to withholding of deportation the applicant must show it is more likely than not that if returned to his home country, he will face persecution on account of, inter alia, political opinion. INS v. Stevic, 467 U.S. 407 (1984). To establish eligibility for asylum the level of proof is lesser--he must show a reasonable possibility of persecution, INS v. Cardoza-Fonseca, 107 S. Ct. 1207. This court reviews questions of law de novo and questions of fact according to the substantial evidence test. Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir. 1988).

Ayala's testimony in this case, if credited, more than suffices to demonstrate that he faced a clear likelihood of political persecution when he fled El Salvador. There were not only several incidents of violence against his family, see Ramirez Rivas v. INS, 894 F.2d 864 (9th Cir. 1990), but Ayala was an active member of a persecuted organization and his name was on a government list of organization members. The only substantial question presented is whether the BIA was justified in discounting much of Ayala's testimony.

The BIA did not question the sincerity of Ayala's testimony; it did, however, find that certain things about which Ayala testified should not be given any weight because Ayala did not fully state the basis of his knowledge about them. In other words, the BIA did not think he was lying; rather it concluded that some of his testimony was not based on first-hand knowledge. We review those conclusions under the "substantial evidence" or "substantially reasonable" standard. See Diaz-Escobar v. INS, 782 F.2d 1442 (9th Cir. 1986). Since the Board did not believe that Ayala was lying, it did not discredit his recounting of any of the incidents to which he was a witness or about which he clearly stated his basis of knowledge. We thus decline the Service's invitation on appeal from the BIA to discredit every statement Ayala made because of minor, immaterial inconsistencies in his application and testimony.²  The Board did not do that in this case, and when the Board fails to make adverse credibility findings as to particular statements, the reviewing court should accept the petitioner's statements as true. Arteaga, 836 F.2d at 1231; Plateo-Cortez v. INS, 804 F.2d 1127, 1131 (9th Cir. 1986).

We now discuss the Board's reasons for disregarding certain of Ayala's testimony. With regard to the incident at the mayor's office where a group of soldiers interrogated Ayala about his brother in the guerrillas, tied him up, and slashed him with a machete, the BIA refused to consider this incident because it was not an example of political persecution, but rather, in its view, legitimate investigation of guerrilla activity. That is contrary to our decision in Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th Cir. 1988), where the court held that when a government harms or punishes someone without undertaking "any formal prosecutorial measures," it engages in persecution and not legitimate prosecution. Under no stretch of the imagination is coercing statements at knife point an acceptable prosecutorial measure. The Board's mistake with respect to this first incident rests on a legal error in misconstruing the term "persecution."

With regard to the second incident, where Ayala testified that his brother-in-law was cruelly tortured and dragged over cactus needles for being a suspected guerrilla, the Board discredited the account because Ayala did not testify about what his relationship was with the man who relayed the account, nor why he believed the man in view of the fact that the man was hiding when the torture occurred. While in some circumstances it might be proper for the Board to discount testimony on that basis, in this case neither the IJ nor the INS counsel cross-examined Ayala on this particular point. See Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986) (Board's credibility finding is suspect when IJ had "full opportunity to cross-examine" and did not seize that opportunity).

With regard to Ayala's father's death, the Board noted that there was no eyewitness. It said further that Ayala's inference that Ayala's "only reason for believing that government forces killed his father is the manner (machete) in which he was killed. The respondent has failed to show that killing persons by use of a machete is exclusive to government forces." We doubt any method of killing is exclusive to government forces. But that fact is not a basis to so lightly brush aside Ayala's belief. It was perfectly reasonable for Ayala to make an inference based on modus operandi. He was no stranger to machetes in the hands of government forces. Moreover, in light of the other tragedies befalling his family at that time, Ayala's explanation seems not only reasonable but probably correct.

The Board concluded its discussion of the incidents regarding Ayala's family with this remarkable statement:

A further reason for the implausibility of the respondent's story regarding his father and brother-in-law is the contrast in treatment they received compared to what has happened to his guerrilla brother. It makes no sense for the government to kill a suspected guerrilla or family member of a suspected guerrilla when an admitted guerrilla the government captures is merely imprisoned.

This conclusion is based on the premise that El Salvador is a country in which punishment is carried out in a rational manner and in full accordance with due process. But the background evidence that Ayala presented with his application fully refutes the Board's premise, as do several of our cases. See e.g. Ramirez Rivas, 899 F.2d at 868 ("even the members of [the alien's] family whom the government might have had legitimate reasons to investigate were punished extrajudicially without even the slightest pretense of due process"). The reason why Ayala's story "makes no sense" is that the actions of the Salvadoran government make no sense. Torture, arbitrary imprisonment, and unequal treatment of similarly situated persons never "make sense," but they are the elements of terror. To discredit a claim of persecution on the grounds that the persecutor's actions make no sense is to discredit all claims of persecution.

With regard to Ayala's Green Cross activities, the BIA stated that "giving medical assistance to the guerrillas who are attempting to overthrow that government, without reporting them to the government, is the equivalent of assisting a criminal enterprise." There is no support in the record for this statement. The only evidence is to the contrary. Cross-examining Ayala, the government twice asked him, "But isn't it against the law, in El Salvador, to give aid to the guerrillas?" He answered both times, "No." He explained that the Green Cross is neutral³  and that it only gives medicine as first aid to individuals, not in large quantities as supplies. The record before the Board contained only Ayala's statements on the issue of the Green Cross's neutrality, and the Board pointed to no evidence to the contrary.

In any event, there is evidence that the death squads, for political reasons, extrajudicially executed or tortured members of the Green Cross. Relying on the UNHCR Handbook on Criteria and Procedures for Determining Refugee Status p 85, we held in Ramirez Rivas, 899 F.2d at 868, that punishment, even of those actually guilty of criminal acts, amounts to persecution on the basis of political opinion if the punishment is excessive or arbitrary and is inflicted with a political motive.

All of the Board's reasons for discounting or disregarding Ayala's testimony are flawed. The Board's inferences were faulty, and it made legal errors as well. Since Ayala's testimony demonstrated that it is more likely than not that he would be persecuted were he returned to El Salvador, we GRANT the petition for review with respect to both the withholding of deportation and asylum claims. We grant the petition to withhold deportation. We hold that Ayala is eligible for asylum and REMAND to the Board to exercise its discretion on the asylum claim.