Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

No. 89-70184.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING, and PREGERSON, Circuit Judges, and MacBRIDE, District Judge.^* 

MEMORANDUM^** 

OVERVIEW

Jose Antonio Mejia-Ventura petitions for review of the Board of Immigration Appeals' (BIA) decision affirming the immigration judge's (IJ) order denying his application for asylum and withholding of deportation. Petitioner fears that if he is returned to El Salvador he will be persecuted by guerrillas for his refusal to join their ranks. He contends that he has established statutory eligibility for both asylum and withholding of deportation based on his political opinion of neutrality. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We grant the petition for review in part and remand the case to the BIA so that it may exercise its discretion as to petitioner's political asylum claim.

On petition for review from the BIA this court reviews questions of law de novo. Rodriquez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir. 1988). We review factual findings underlying the BIA's decision for "substantial evidence." Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir. 1988). This standard does not permit us to reverse the BIA for the sole reason that we disagree with its evaluation of the facts but requires that the BIA's conclusion, based on the evidence presented, be "substantially reasonable." Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir. 1988).

Mejia-Ventura contends that he exercised his choice to remain neutral in the El Salvadoran civil war by refusing to join the El Salvadoran guerrillas voluntarily, and that his choice to remain neutral constitutes a political opinion for which the guerrillas may persecute him. This contention has merit.

To qualify for asylum under section 208(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158(a), the petitioner must show that he is a refugee. A "refugee" is an alien who is unwilling or unable to return to her former 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." 8 U.S.C. § 1101(a) (42) (A); Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir. 1987). The well-founded fear standard includes both an objective and subjective component. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). Thus, the applicant must show both a "genuine" subjective fear and a "reasonable possibility" of persecution. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988).

An asylum applicant's "candid, credible and sincere testimony" demonstrating a genuine fear of persecution satisfies the subjective component prong of the well-founded fear standard. See Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987). Although the alien must produce some evidence to show that persecution, if carried out, would be directed at the individual, the alien may produce such evidence in this circuit by means of his own testimony. See, e.g., Artiga-Turcios v. INS, 829 F.2d 720, 723 (9th Cir. 1987).

In evaluating the objective basis for a fear of persecution, one consideration is "whether the group making the threat has the will or ability to carry it out." Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285-86 (9th Cir. 1984); see also Cardoza-Fonseca, 480 U.S. at 431 (one-in-ten possibility of persecution may be sufficient to warrant asylum). Additionally, the threat of persecution need not come from the government, but may also come from groups, including anti-government guerrillas which the government is "unwilling or unable to control." Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir. 1988) (quoting McMullen v. INS, 658 F.2d 1312, 1315 & n. 2 (9th Cir. 1981)). A threat prompted by an asylum applicant's resistance to joining revolutionary guerrillas voluntarily, where such resistance reflects a lack of support for the guerrilla cause and the adoption of a neutral position toward both sides in the civil war, is sufficient to support a claim of persecution for political opinion. Id. at 1231; see also Maldonado-Cruz v. INS, 883 F.2d 788, 791 (9th Cir. 1989).

At the hearing before the IJ, Mejia-Ventura testified that he was from La Paz, El Salvador, where he worked in his grandfather's cattle business. He testified that in January of 1982, four men who identified themselves as guerrillas surrounded him and stole his horse. He thinks that the guerrillas were dissuaded from further action because it was daylight, and there were witnesses close enough to observe them. Petitioner further testified that the guerrillas told him they would return for him. He testified "they wanted me to go with them. And that if when (sic) they found me if I was opposed to them that they were going to kill me." He stated that the guerrillas may have been deterred from further action at the time because they were "in the vicinity of government forces."

Mejia-Ventura testified that he had no other direct encounters with the guerrillas. After this incident he continued to live at his home, which was in the vicinity of the encounter. He testified that he was afraid because "many things occurred there ... near." He testified that he joined the "Civil Patrol" or Civil Guard about three weeks after the encounter in order to protect himself from the guerrillas.

Mejia-Ventura left El Salvador in 1984. He testified that he left El Salvador because the guerrillas were always looking for him, and that on one occasion he saw them crossing in front of his house.

At the hearing before the IJ, Mejia-Ventura presented testimony corroborating this incident in the form of a declaration by three witnesses. The witnesses testified that he "was assaulted and sentenced to death by members of the guerrilla [sic]...." The witnesses further testified that petitioner joined the "military guard to find refuge from the government." The witnesses also testified that two of his cousins who served in the army were killed by guerrillas. The BIA's conclusion that this testimony contradicts Mejia-Ventura's testimony was error. He specifically stated that the guerrillas had threatened to kill him, and thus the witnesses' statement that he received a death threat was not contradictory. Moreover, in concluding that petitioner was a mere victim of a crime, the BIA dismissed his credible testimony that he knew the men were guerrillas, that they threatened him with forced conscription and death, as well as the declaration of three witnesses corroborating his claims. Thus, the BIA disregarded important aspects of Mejia-Ventura's testimony and mischaracterized the evidence.

The IJ made an express finding of petitioner's credibility, noting that he was "forthright in his answers." See Blanco-Comarribas, 830 F.2d at 1043. Thus, Mejia-Ventura satisfies the first prong of the well-founded fear standard, i.e., a genuine subjective fear of persecution based upon his credible testimony.¹  See Turcios, 821 F.2d at 1401.

Mejia-Ventura's resistance to joining the guerrillas voluntarily, which prompted the threat, reflected his nonsupport for the guerrilla cause and his adoption of a neutral position towards both sides in the El Salvadoran civil war. His refusal to join the guerrillas was a manifestation of his neutrality, a recognized political opinion. See Maldonado-Cruz, 883 F.2d at 791. Furthermore, absent his consent to join them, the guerrillas would have had to forcefully conscript him to get him into their ranks, or kill him if he refused. Such forced recruitment would constitute persecution for political opinion. See Arteaga, 836 F.2d at 1232. Further, as Mejia-Ventura alleges, his identity and residence are either well known to the guerrillas, or are easily ascertainable. Thus, the guerrillas have the ability to carry out their threats. See Bolanos-Hernandez, 767 F.2d at 1285-86.

Because it appears that there is a reasonable possibility that the guerrillas may carry out their specific threats of kidnapping or death against petitioner if he returns to El Salvador, his fear of persecution is well founded. See Arteaga, 836 F.2d at 1229. Therefore, he satisfies the objective component of the well-founded fear standard. The BIA erred in concluding that Mejia-Ventura does not qualify for asylum.² 

Because the BIA erred in determining that Mejia-Ventura was statutorily ineligible for political asylum, the BIA also erred in determining that he was a fortiori ineligible for withholding of deportation. Diaz-Escobar, 782 F.2d at 1492. We must now determine whether he satisfies the more stringent test for withholding of deportation.

To qualify for withholding of deportation under INA Sec. 243(h), a person must show that deportation would threaten him with loss of life or freedom "on account of race, religion, nationality, membership in a particular social group, or political opinion." See INS v. Stevic, 467 U.S. 407, 421 n. 15 (1984); Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1988). The petitioner must show that there is a " 'clear probability' of persecution--that is, that it is 'more likely than not' that he ... will be persecuted." Lazo-Majano v. INS, 813 F.2d 1432, 1434 (9th Cir. 1987) (quoting Stevic, 467 U.S. at 424).

Mejia-Ventura testified that after the 1982 incident until his departure in 1984, he had no other direct encounters with the guerrillas. This two year lapse of time during which he suffered no further problems with the guerrillas undermines his claim that there is a clear probability that he will be persecuted.

Mejia-Ventura also claims that the specific threat against his own life, as well as violence against one cousin and the murder of two other cousins, "establish a likelihood of persecution to trigger the protection afforded under section 243(h)." He has failed, however, to show how either the violence directed at one of his cousins or the murder of two other cousins was related to the threat he received from the guerrillas. He testified that he did not know why his relatives were killed. It appears equally likely that the violence directed against his cousins was unrelated to his incident with the guerrillas.

Taken as a whole, Mejia-Ventura's allegations do not support a finding that there is a "clear probability of persecution" or that it is "more likely than not" that he will be persecuted if deported to El Salvador. See Lazo-Majano, 813 F.2d at 1434. Thus, he has failed to show that the BIA erred in denying his claim for withholding of deportation.

CONCLUSION

We grant the petition for review in part and remand to the BIA so that it may exercise its discretion as to Mejia-Ventura's political asylum claim.