Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

MEMORANDUM^* 

Jose Eduardo Valle-Zometa (Valle) and his common-law wife, Martha Solis-Aguilar (Solis), natives and citizens of El Salvador, petition for review of the Board of Immigration Appeals' (BIA's) affirmance of the Immigration Judge's (IJ's) denial of their applications for political asylum and withholding of deportation. Petitioners contend that they have each, based on separate facts, established a well-founded fear of persecution based on imputed political opinion and membership in a particular social group.

The petition for review is granted, the decision of the BIA reversed as to Solis and affirmed as to Valle. Solis' asylum claim is remanded so that the Attorney General may exercise his discretion under 208(a) of the Refugee Act. The BIA's finding that neither petitioner demonstrated "a well-founded fear" of persecution was based on an erroneous application of the law, and, as to Ms. Solis, is not supported by substantial evidence. See Cardoza-Fonseca, 480 U.S. 421 (1987); Canas-Segovia v. INS, 902 F.2d 717 (9th Cir. 1990). In Mr. Valle's case, the BIA's conclusion was supported by substantial evidence, so any legal error was harmless. The BIA's denial of withholding of deportation under Sec. 243(h) of the Immigration and Naturalization Act is affirmed as to both petitioners.¹ 

After this petition was filed, petitioners requested a stay to enable them to file motions for reopening and suspension of deportation with the BIA, based on their seven years' continuous residency in the U.S. during the pendency of this appeal. See Sida v. INS, 783 F.2d 947, 950 (9th Cir. 1986). We stay our mandate as to Mr. Valle for sixty days to allow him to request the BIA to suspend his deportation.

FACTUAL AND PROCEDURAL BACKGROUND

Jose Eduardo Valle-Zometa and his common-law wife, Martha Solis-Aguilar, entered the United States without inspection and were apprehended in Arizona in September, 1982. The next day, the INS issued orders to show cause why they should not be deported. At their deportation hearing, both petitioners admitted deportability and applied for political asylum and withholding of deportation under Secs. 208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) & 1253(h).²  Each petitioner testified that they had been threatened with death in El Salvador, and presented extensive documentary evidence about the civil war raging there.

Ms. Solis testified that she feared persecution in El Salvador because of two separate incidents. In November, 1981, she assisted a friend in retrieving the corpses of her three daughters who had been kidnapped and murdered. The two women found the bodies on a beach two or three hours away from their village, with warning signs placed on the bodies stating that whoever picked them up would suffer the same fate. A month later, the truck driver (Oscar) who had told them about the bodies was kidnapped and found dead. Yvonne, the daughter of one of the murdered women, also disappeared two months later, and Ms. Solis' friend was forced to move to another town "when they came looking for her."

The second incident occurred when she witnessed the murder of a guard in the marketplace, and tried to give him first aid. Two hours later, three armed men in a military jeep arrived to interrogate her as to who had shot the guard, and threatened her when she could not identify the killers. Three days later, they returned and interrogated her a second time. At this same time, one of her co-workers was kidnapped and found murdered, her body mutilated. She testified that "every week ... you would see dead people all over the place." Ms. Solis did not testify to any political opinion or discuss whether she was neutral.

Mr. Valle stated that he had painted the car of a "civil authority" "who always carried an arm" and was connected with the police. When he asked for payment, the man refused and instead threatened to kill Valle, who promptly left the area on the advice of his boss. Mr. Valle also lived with his stepfather, who had been a member of ORDEN, a para-military organization. The stepfather received several letters containing death threats, and had to go into hiding with different relatives. Valle testified that the threats placed the entire family in danger. In addition, several of Valle's friends had been killed before he left El Salvador. One was kidnapped and later found dead in the mountains, while another was burned to death and found with a sign on his body calling him "an example for the others." Finally, Valle also stated that he favored neither side in the war and was afraid to express any political opinion or acknowledge that he knew the dead men.

On cross-examination, both petitioners testified that they had never been arrested, detained, or physically abused in El Salvador. Both had family remaining there, and neither family had been threatened (except for Mr. Valle's stepfather, who remained in hiding). Mr. Valle corroborated his wife's testimony about the three murdered women. The Service presented no evidence, other than a form letter from the State Department's Bureau of Human Rights and Humanitarian Affairs which stated that the "applicant" in the singular (presumably, Valle) had not shown a well-founded fear of persecution.

Judge Nail found both aliens deportable to El Salvador, denied both asylum and withholding of deportation as to each petitioner, and granted voluntary departure. Both petitioners appealed to the BIA, which reviewed their applications de novo and dismissed the appeals. Petitioners filed a timely petition for review to this court.

STANDARD OF REVIEW

This court's review is confined to the decision of the BIA; if the BIA's determination was correct, then any error by the IJ is harmless. Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988). This court reviews 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 BIA's factual findings concerning eligibility for asylum and withholding of deportation are reviewed under the "substantial evidence" standard and will be reversed if the findings are not substantially reasonable. Rodriguez-Rivera at 1001; Bolanos-Hernandez at 1282 n. 8 & 9. Whether the BIA applied the appropriate legal standards is reviewed de novo. Arteaga v. INS, 836 F.2d 1277, 1228 (9th Cir. 1988).

Because both petitioners here conceded deportability, the government's burden is satisfied and they must show entitlement to relief from deportation. Arteaga at 1228. As in Arteaga and Rodriguez-Rivera, the BIA concedes that the Immigration Judge here erroneously applied a single "likelihood of persecution" standard of proof to the petitioners' evidence. In response, the board undertook to correct this error by reviewing the evidence de novo and evaluating it under the standards established by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

The BIA began its opinion by quoting the definition of "refugee" found in the Immigration and Naturalization Act, 8 U.S.C. § 1101(a) (42) (A), which requires the applicant to show "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." It also correctly quoted the Supreme Court's explanation in Cardoza-Fonseca that "there is a significant difference between the section 208(a) and section 243(h) standards for relief, and that an asylum applicant need not show a likelihood of persecution in order to establish eligibility for 208(a) relief."³ 

However, the BIA chose not to apply the two-pronged "well-founded fear" analysis developed by this Circuit in Cardoza-Fonseca itself, which requires that "(1) the alien have a subjective fear, and (2) that this fear have enough of a basis that it can be considered well-founded." Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir. 1985), aff'd 480 U.S. 421 (1987). See also Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987). Instead, the BIA used its own "reasonable person" test, as set forth in Matter of Mogharrabi, Int.Dec. 3028 (BIA, June 12, 1987). This test is problematic, since it ignores the subjective emphasis of Cardoza-Fonseca itself. As we recently stated, "the Board invented a new standard [in Mogharrabi ] that was not responsive to the United States Supreme Court." Montecino v. INS, No. 89-70008, slip op. at 12246 (9th Cir. September 28, 1990). In Montecino, we reversed the BIA's denial of asylum to a Salvadoran ex-soldier who feared guerrilla persecution. We emphasized that

... it is not illegitimate for a test of "reasonableness' to enter into the trier of fact's appreciation of the alien's state of mind. But what is an objective circumstance must be determined in the political, social, and cultural milieu of the place where the petitioner lived.... Attention to the objective circumstance, in any event, should not swallow up the primary focus ... on the subjective state of mind of the petitioner. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).

Belief is subjective. Fear is subjective. The trier of fact is to determine what this particular petitioner believed and feared in the light of objective circumstances the petitioner encountered.

Id. at 12245. In another recent opinion, we held that Mogharrabi is not necessarily "inconsistent" with Cardoza-Fonseca, but cautioned:

the use of "magic words" is not the focus of our inquiry; we look at the analysis actually applied by the BIA. Vides-Vides v. INS, 783 F.2d 1463, 1468 (9th Cir. 1986) ... Mogharrabi discuss [es] both subjective fear and an objective basis as components of [its] "reasonable person" test for purposes of asylum claims. Thus, the "reasonable person" test used by the BIA in this case includes both the subjective and objective inquiries required by Cardoza-Fonseca.

Cuadras v. INS, No. 88-7478, slip op. at 8169-70 (9th Cir. August 3, 1990) (emphasis added). See also Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir. 1988) ("boiler-plate language" or "magic words" no substitute for applying appropriate legal standard).

In the instant case, a "look at the analysis actually applied by the BIA" reveals that neither the Board nor the IJ made any findings whatsoever on whether the aliens demonstrated a "subjectively genuine fear," as required by Cardoza-Fonseca. Instead, the BIA decision recounts their testimony that they both "feared harm in El Salvador" but concludes that neither respondent "has met his [sic] burden of proving that a reasonable person in his position would fear persecution in El Salvador." Petitioners' contention that the BIA failed to actually apply the subjective portion of the Cardoza-Fonseca test is correct and requires reversal unless the error was harmless.

Under Cuadras, "the 'subjectively genuine' prong of the Cardoza-Fonseca test is satisfied by an alien's credible testimony stating a genuine fear of persecution. Because the IJ did not question [petitioners'] credibility, this prong of the test is satisfied." Slip op. at 8170 (citation omitted). Here, since neither the IJ nor the BIA questioned petitioners' credibility, we also may assume that they found petitioners' testimony to be credible. Therefore, we hold that both petitioners here have met the "genuine fear" threshold of Cardoza-Fonseca.⁴ 

Finally, the BIA's "reasonable person" standard as applied here also impermissibly misstated the objective prong of Cardoza-Fonseca, which requires only that an alien's "subjective fear ... have enough of a basis that it can be considered well-founded." Cardoza-Fonseca v. INS, 767 F.2d at 1453. As the Supreme Court instructed in affirming our decision:

That the fear must be "well-founded" does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a "more likely than not" one.... This ordinary and obvious meaning of the phrase is not to be lightly discounted.

480 U.S. at 431. By substituting Mogharrabi's "reasonable person" test for the two-pronged Cardoza-Fonseca standard, the Board impermissibly "discounted" Supreme Court and Ninth Circuit precedent.

In this circuit, we require that "the [alien's] fear must have some objective basis if we are ultimately to find it well-founded," and the emphasis remains on "the applicant's mental state." Cardoza-Fonseca v. INS, 767 F.2d at 1452. The alien must demonstrate only "some reasonable possibility" of persecution, Ramirez-Rivas v. INS, 899 F.2d 864, 866 (9th Cir. 1990), or show that the "fear is based in reality," Blanco-Comarribas v. INS, 830 F.2d 1039, 1043 (9th Cir. 1987). "Mere irrational fear" will not suffice, Cuadras v. INS, slip op. at 8170, but there need be as little as a ten-percent chance that persecution will actually occur. Cardoza-Fonseca, 480 U.S. at 431. We have held repeatedly that

the [alien's] testimony will suffice if it is credible, persuasive, and refers to specific facts that give rise to an inference that the applicant has been or has a good reason to fear that he or she will be singled out for persecution on one of the specified grounds listed in section 208(a).

Blanco-Comarribas v. INS, 830 F.2d 1039, 1042-43 (9th Cir. 1987). This is significantly lower than the BIA's "reasonable person" test.

II. Substantial Evidence of "Well-Founded Fear"

Under a proper application of the Cardoza-Fonseca standard, we affirm the BIA's determination as to Mr. Valle, but hold that its conclusion in Ms. Solis' case is unsupported by substantial evidence.

Ms. Solis' undisputed testimony reveals that her fear of being persecuted if she returns to El Salvador is "well-founded."⁵  She is a likely target both because she helped retrieve her murdered friends' corpses, in direct defiance of the messages left on their bodies by the murderers, and because she witnessed the murder of a soldier and went to his aid, but failed to identify the killers. The fact that her life was threatened twice, both directly by the military investigators and indirectly by the guerrillas who left the notes on the bodies, indicates that she has been "singled out" for possible persecution. Finally, the fact that at least five of her friends and acquaintances have been killed or "disappeared," shows that the threats should be taken seriously.

The question then remains whether the persecution is or would be "on account of" imputed political opinion or membership in a social group, as petitioners allege and as required by section 208(a) and Ninth Circuit precedent. A claim of persecution may be based on an imputed political opinion, Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988), on opinions which the persecutor falsely attributes to the alien, Ramirez-Rivas v. INS, 899 F.2d 864 at 867 (9th Cir. 1990) (citing Hernandez-Ortiz v. INS, 777 F.2d 509, 516-517 (9th Cir. 1985), or on an assertion of neutrality by the alien, Maldonado-Cruz v. INS, 883 F.2d 788, 792 (9th Cir. 1989). It may also be based on "membership in a particular social group," as defined by Sanchez-Trujillo v. INS, 801 F.2d 1571, 1574-75 (9th Cir. 1986). 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) (citing McMullen v. INS, 658 F.2d 1312, 1315 & n. 2 (9th Cir. 1981).

The Board held that "respondent Solis ... has not shown that a reasonable person in her position would fear persecution in El Salvador." This conclusion was based on an erroneous application of the law and is not supported by substantial evidence. Ms. Solis contends correctly that she has demonstrated eligibility for asylum based on both imputed political opinion and membership in a particular social group. Both of Ms. Solis' experiences involved actual murders as well as death threats, and her conduct in both cases clearly evidenced the kind of "overt manifestations" required to have a political opinion erroneously imputed to her. Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988). In both cases, she demonstrated that there was a "reasonable possibility" that she would be "singled out" for persecution, Rodriguez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir. 1988), "by the government or by forces it cannot control," Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir. 1988).

Ms. Solis claims that a political opinion will be imputed to her because she helped move the bodies of her three murdered friends, in defiance of the written warnings placed there by the killers. While the written threats alone may be enough to make out a claim, the subsequent developments that the truck driver who showed them the corpses was murdered a month later, the daughter of one of the three women soon "disappeared," and the mother of the victims was forced to move away after her life was threatened, corroborate that the danger was real and that the killers were serious. Whether petitioner's motive was personal, political, or humanitarian is irrelevant, Bolanos-Hernandez v. INS, 767 F.2d at 1286, as is her actual political ideology, Desir v. Ilchert, 840 F.2d at 729. Where "the circle of persecution was drawing closer and closer to the petitioner herself," Najaf-Ali v. Meese, 653 F. Supp. 833, 836 (N.D. Cal. 1987), she was not required to wait until she was personally attacked or arrested before seeking asylum in this country. As we recently noted, " [t]his court has extended asylum eligibility to those aliens who can show a likelihood of political persecution based on abuses endured by family members and friends, even though the abuse has not yet reached the alien personally." Beltran-Zavala v. INS, No. 89-70086, slip op. at 10292 (9th Cir. August 31, 1990) (per curiam) (citing Rivas v. INS, No. 88-7463, slip op. 3157 (9th Cir. Mar. 29, 1990)).

At oral argument, the government urged us to rely on Valle's description of the three murdered women as "women of the streets," as though their moral character were somehow dispositive of Ms. Solis' case. It also engaged in wholly unsupported speculation that their murders were unrelated to the political situation in El Salvador. This assertion is inconsistent with the undisputed evidence that the killings were "execution-style," that warning notes were found on the bodies, and that other members of the rescue party were subsequently also executed. However, it also raises a more troubling issue. The essence of Ms. Solis' claim, like all imputed political opinion claims, is that the killers thought that she possessed a political opinion, because of her actions. The fact that they may have been wrong is irrelevant, since the whole point is that they do not take the time to ascertain the truth. See, e.g. Bolanos-Hernandez v. INS, 767 F.2d at 1285-86; Ramirez-Rivas v. INS, 899 F.2d 864, 867-70 (9th Cir. 1990). Regardless of her actual motivations, Solis herself has demonstrated that a political opinion may be falsely imputed to her as a result of her actions, and that she risks a substantial chance of persecution on that basis if deported to El Salvador.

Secondly, Solis also claims that she has shown a reasonable possibility of persecution based on the statutory ground of "membership in a particular social group," for which we established a four-part test in Sanchez-Trujillo v. INS, 801 F.2d 1571, 1574-75 (9th Cir. 1986). In essence, a petitioner must show that the group is "a collection of people closely affiliated with each other, who are actuated by some common impulse or interest ... a voluntary associational relationship [with] some common characteristic that is fundamental to their identity" as group members. Id. at 1576. Ms. Solis' close relationship to the three dead women and their mother, evidenced by her testimony and the fact that she put herself in danger by retrieving their bodies, coupled with the fact that several of those associated with retrieving the dead bodies have been threatened and/or killed, means that the "body-retrievers" may qualify as such a group. See also Hernandez-Ortiz v. INS, 777 F.2d 509, 516-57 (9th Cir. 1985); Turcios v. INS, 821 F.2d 1396, 1401 (9th Cir. 1987).

The Board seemed to base its denial of asylum on the lack of specificity in Ms. Solis' recounting of the threats made against her. She did not know precisely who the murderers were, which side they were on, why her friends were killed, or who the "men in the jeep" were that questioned her about the soldier's murder, and she admitted that she herself had not been detained, kidnapped, or physically abused. However, she provided ample details about each incident on both direct and cross-examination, as well as a complete chronology of the killings. In any case, lack of specific details is not necessarily a bar to a valid asylum claim where the witness's credibility is unquestioned and other evidence is detailed enough to support her testimony. See Bolanos-Hernandez v. INS, 767 F.2d at 1285 ("If the alien's own testimony about a threat, when unrefuted and credible, were insufficient ... it would be 'close to impossible' [for any political refugee] to make out a ... case.") (citing McMullen v. INS, 658 F.2d 1312, 1319 (9th Cir. 1981)).

Furthermore, it is documentary evidence which often is the most useful in corroborating whether the group making the threat has "the will and ability to carry it out." Id. at 1285. Petitioners here submitted ample documentary evidence, including reports of Congressional testimony, to bolster their assertions that they faced a "reasonable possibility of persecution" based on their own acts and the widespread violence occurring daily in their country. In the face of this evidence, there is nothing to support the BIA's conclusion that Ms. Solis should not qualify for refugee status. Therefore, we reverse the BIA's decision and remand with directions to the Attorney General so that he may determine whether to grant asylum relief. See also Aguilera-Cota v. INS, No. 88-7389, slip op. at 11729 (9th Cir. September 21, 1990).

The BIA found that Mr. Valle's "main fear of harm in El Salvador ... stems from a payment dispute [which] constitutes a purely personal matter between the respondent and his customer," citing to our decision in Florez-de Solis v. INS, 796 F.2d 330 (9th Cir. 1986), where a woman had received threats in an attempt to collect money after her boss was murdered. We agree with the BIA that, "even if we assume that the customer was somehow affiliated with the Salvadoran government," this incident alone was not enough to support a finding of imputed political opinion, since there is no evidence that a political opinion was being imputed to Mr. Valle based on this disagreement. Cf. Desir v. Ilchert, 840 F.2d at 728.

The BIA also found that the threats to Mr. Valle's stepfather did not establish that his family had been singled out for persecution under the analysis of Hernandez-Ortiz v. INS, 777 F.2d 509, 516-17 (9th Cir. 1985), since Mr. Valle's testimony did not establish how many threats had been received or who had made them, and no one in the family had actually been harmed, including the stepfather. In addition, Mr. Valle did not know the identity of the threateners, and therefore could not testify to their "will or ability to carry out the threats," as required by Quintanilla-Ticas v. INS, 783 F.2d 955 (9th Cir. 1986). The Board's conclusion that Mr. Valle has not met his burden of demonstrating eligibility for asylum is therefore supported by substantial evidence, despite its legal error in failing to apply the Cardoza-Fonseca test.

Finally, the BIA apparently ignored the documentary evidence submitted by both petitioners.⁶  This evidence, while insufficient on its own, supports their claims that random violence was epidemic in El Salvador from all sides of the political spectrum, and that non-political persons like themselves were likely targets, based on the incidents they related. We have cautioned that such evidence, when "coupled with testimony about a specific threat to [an alien's] life," is relevant and should be considered. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1284 (9th Cir. 1984). In addition, although the government contends that petitioners' fear is based on the "random, unspecified violence" documented in the reports, it seems to be arguing that this negates petitioners' evidence of specific threats. On the contrary:

We are mystified by the Board's ability to turn logic on its head. While we have frequently held that general evidence of violence is insufficient [alone], not once have we considered a specific threat against a petitioner insufficient because it reflected a general level of violence.... It should be obvious that the significance of a specific threat ... is not lessened by the fact that the individual resides in a country where the lives and freedom of a large number of persons are threatened. If anything, ... that fact may make the threat more serious or credible.

Id. at 1284-35. Both petitioners here provided extensive documentation to support their claims that violence was rampant in El Salvador, and that they might be singled out as targets of that violence. However, the Board's failure to adequately weigh that evidence did not impinge on the "fundamental fairness" of these proceedings, and is therefore not reversible error on due process grounds. Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986).

CONCLUSION

The BIA's finding that Ms. Solis failed to demonstrate a "well-founded fear" of persecution based on imputed political opinion and/or membership in a particular social group is based on application of an erroneous standard of law and not supported by substantial evidence. Therefore, it is REVERSED and REMANDED to allow the Attorney General to exercise his discretion as to asylum. The BIA's decision as to Mr. Valle is AFFIRMED, but our mandate is hereby stayed for sixty days to allow him to request the BIA to suspend his deportation. Mr. Valle retains the right to petition for extensions of the stay at sixty-day intervals for good cause shown.