Unpublished Disposition, 855 F.2d 860 (9th Cir. 1988)

MEMORANDUM^** 

Jose Rene Blanco-Sosa petitions for review of an order of the Board of Immigration Appeals denying Blanco-Sosa's petition for asylum and withholding of deportation.

Blanco-Sosa is eligible for asylum under 8 U.S.C. § 1158(a) if he falls within the definition of "refugee" provided by 8 U.S.C. § 1101(a) (42) (A), which states in part:

The term "refugee" means (A) any person who ... is unable or unwilling to return to ... [his or her] country because of ... a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....

Even a ten-percent chance of persecution can be enough to meet this standard. INS v. Cardoza-Fonseca, 107 S. Ct. 1207, 1217 (1987); Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987). The Board's determination that petitioner did not have a well-founded fear is reviewed under the substantial evidence standard. Mendez-Efrain v. INS, 813 F.2d 279, 282 (9th Cir. 1987).

Blanco-Sosa testified that on three occasions over a five month period, guerillas left notes at his family home that identified him by name and stated he would be "arrested" if he did not join the guerilla forces voluntarily. One note stated the guerillas would come for Blanco-Sosa "wherever [he] was." One note was delivered to Blanco-Sosa's father by armed men. According to the notes, Blanco-Sosa was selected for recruitment as the eldest son and because his brother was a member of the Salvadoran army. Blanco-Sosa left his home immediately upon receipt of the first note, and departed the country as soon as his father gave him enough money to do so.

The threatened persecution was based on Blanco-Sosa's "political opinion," which qualifies him for asylum under the statute. According to the uncontroverted evidence, the guerillas apparently imputed to Blanco-Sosa his brother's political affiliation with the government. See Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987) (to determine whether persecution is motivated by political opinion, the court looks at the victim from the persecutors' perspective). In any event, Blanco-Sosa testified his religious beliefs dictated neutrality between the government and the rebels, thus bringing him within the rule of Bolanos-Hernandez v. INS, 767 F.2d 1277, 1286-87 (9th Cir. 1985) (the choice to remain neutral in the face of two contending political forces is a political opinion).

An alien's fear of persecution must be "both subjectively genuine and objectively reasonable." Sanchez-Trujillo v. INS, 801 F.2d 1571, 1579 (9th Cir. 1986). Blanco-Sosa's testimony as to his subjective fear is supported by the fact that he fled his home immediately after his father received the initial note. Blanco-Sosa's fear was objectively reasonable given the multiple threats, the fact Blanco-Sosa was singled out, and the fact that the guerillas had easy access to his home.

Because neither the immigration judge nor the BIA found Blanco-Sosa's testimony not credible, we treat it as credible. Artiga-Turcios v. INS, 829 F.2d 720, 723 (9th Cir. 1987). Blanco-Sosa's testimony was sufficient to establish a basis for asylum since it was "credible, persuasive, and refers to specific facts that give rise to an inference that the applicant ... has a good reason to fear that he ... will be singled out for persecution." Blanco-Comarribas, 830 F.2d at 1042-43 (original emphasis; internal quotation omitted).

Rodriguez-Rivera v. INS, No. 87-7140 (9th Cir. June 7, 1988), reads Bolanos-Hernandez to require "that we examine the guerillas' will or ability to carry out the threat, not simply whether threats were made." Slip. op. at 6647. In Rodriguez-Rivera we noted the death of the guerilla who was principally responsible for the threats made against the petitioner in that case was a "significant factor" supporting the Board's finding that the guerillas lacked the will or ability to carry out their threats. Id. at 6648. There is no comparable evidence in this case. To the contrary, the notes delivered to Blanco-Sosa's family demonstrate the guerillas unfettered access to his home and their ability to abduct him.

The Board's finding that Blanco-Sosa failed to demonstrate a well-founded fear of persecution is not supported by substantial evidence. Accordingly, we remand his asylum claim to the Attorney General so he may exercise his discretion under Sec. 208(a) of the Immigration and Naturalization Act. See Blanco-Comarribas, 830 F.2d at 1043.

The Board's finding that Blanco-Sosa is not eligible for withholding of deportation is supported by substantial evidence. To qualify for withholding of deportation, Blanco-Sosa was required to show "it is more likely than not that the alien would be subject to persecution." INS v. Stevic, 467 U.S. 407, 429-30 (1984). As the Board pointed out, the guerillas did not seek to recruit his draft age brothers after he left, no member of his family was bothered, and petitioner himself remained unmolested in a neighboring town for several months awaiting the funds for his departure.

GRANTED in part, DENIED in part, and REMANDED.