Vera-Valera v. I.N.S.
| Decision Date | 07 July 1998 |
| Docket Number | VERA-VALERA,No. 96-70317,96-70317 |
| Citation | 147 F.3d 1036 |
| Parties | 98 Cal. Daily Op. Serv. 5343, 98 Daily Journal D.A.R. 7495 Ernesto Antonio; Cleta Alcira Martell De Vera; Leonid Antonio Vera-Martell; Danitza Margarita Vera-Martell, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles E. Nichol, San Francisco, California, for petitioners.
Frank W. Hunger, Francesco Isgro, Donald A. Couvillon, Marion E. Guyton, Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for respondent.
Petition to Review a Decision of the Immigration and Naturalization Service.
Before: SCHROEDER and KLEINFELD, Circuit Judges, and WALLACH, U.S. Court of International Trade Judge. *
The petition for rehearing is granted. The attached opinions are ordered filed. The opinions filed September 3, 1997, are withdrawn.
In our original opinion, we held that there was no compelling evidence to overturn the BIA's finding that petitioner failed to show that he was persecuted on account of an actual or imputed political opinion. See 123 F.3d 1302, 1304 (9th Cir.1997). On review of the petition for rehearing and the response, and further review of the record, we conclude that that holding was in error.
Ernesto Antonio Vera-Valera, his wife, and two of their children, all nationals of Peru, came to the United States seeking asylum due to death threats from the Maoist guerilla group Sendero Luminoso.
In Lima in 1987, petitioner and his wife began selling juices and candies on the street for several hours each evening, after he worked his day job with the government in Lima, Peru. To avoid having to obtain an individual street vendor's license, he joined a cooperative of street vendors.
In 1987-1988, petitioner first became a board member, then president of the cooperative. During his presidency, the goal of the cooperative was to build a permanent building in which all of its members could sell their wares. This was important, according to petitioner, because the cooperative's permit to vend on the streets was about to expire, and the municipality was unwilling to renew it. Petitioner was a strong advocate of the construction of that building and used his position as president to advance that goal. Petitioner testified that the cooperative itself had no direct political affiliation, although members of the cooperative had different political ideas.
Petitioner testified that he began having problems while he was president of the cooperative, because there were members of the organization who opposed the construction of the building. These opponents were members of Sendero Luminoso. According to petitioner, Sendero Luminoso did not want the vendors off the street because the presence of the vendors in street traffic helped the guerrillas both to disseminate their ideas and to disappear when necessary. Petitioner testified that the opposition to his support for the construction of the building extended beyond the meetings held at the cooperative. He received telephone and written threats during his presidency. He testified that the callers identified themselves as members of Sendero Luminoso and that they warned petitioner that he would be killed if he continued to advocate the construction project. The written threats contained the identifying hammer and sickle symbol favored by Sendero Luminoso.
Petitioner's term of office as president ended in 1988, and the building project was not completed by that time. He remained a member of the cooperative for six more months, but then was forced to give up his membership as a result of charges brought against him by those members who had opposed the construction project. He was accused of irregularities with regard to the registration and transfer of deeds for the building. The loss of membership in the cooperative meant that petitioner lost his ability to operate as a street vendor.
Petitioner testified that the threats against him had escalated to the point where he feared for his safety if he remained in Peru. It is for this reason that he left Peru and began traveling through Columbia, Panama, Belize, Guatemala, and Mexico. Eventually, he entered the United States without inspection in November of 1989. In 1991 or 1992, a Peruvian court found him innocent, in absentia, of any wrongdoing in the cooperative's affairs. Petitioner testified, however, that he is afraid that if he returns to Peru, he will be killed by the guerrillas because of the positions he took while he was in the cooperative's leadership, which were clearly contrary to the guerillas' goals and views.
The immigration judge determined that petitioner had failed to show that "the organizational problems he had while serving as president of the cooperative or thereafter, as a member, were in any way related to political opinion or any other protected statutory ground." See 8 U.S.C. § 1101(a)(42)(A).
The BIA went one step further concluding, erroneously that:
He has not shown that the construction project was a political issue for individuals on either side of the conflict or that only the Sendero Luminoso opposed it. Therefore, any hardship the respondent may have encountered as a result of the construction project, in particular, or his involvement in the cooperative, in general, was not on account of his political opinion.
The evidence compels the conclusion, however, that the project was a political issue both inside the union and as between the government and Sendero Luminoso. Vera-Valera presented uncontradicted testimony that the union members debated the construction issue at meetings of the directorship and of the entire cooperative. Sendero Luminoso opposed the construction project because it preferred vendors to be located on the street, where traffic would facilitate the ability to hide and to disseminate political information. The government supported the construction project because it wanted to move street vendors from the streets to help eliminate these advantages for Sendero Luminoso. In fact, the government would not renew the cooperative's license to sell on the streets.
The evidence also showed that only Sendero Luminoso opposed the construction project. Vera-Valera testified that the members of the cooperative who opposed...
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...threat" or his flight immediately after receiving the threat negate his well-founded fear of persecution? Cf., e.g., Vera-Valera v. INS, 147 F.3d 1036 (9th Cir. 1998); Gonzales-Neyra v. INS, 122 F.3d 1293 (9th Cir. 1997), amended, 133 F.3d 726 (9th Cir. 1998) (finding past persecution and a......
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