Navas v. INS
| Decision Date | 01 November 1999 |
| Docket Number | No. 98-70363,98-70363 |
| Citation | 217 F.3d 646 |
| Parties | (9th Cir. 2000) MARIO ERNESTO NAVAS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent |
| Court | U.S. Court of Appeals — Ninth Circuit |
L. Walker Van Antwerp, III, Los Angeles, California, for the petitioner.
Heather Phillips, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.
Petition for Review from the Board of Immigration Appeals; INS No. A70 189 355
Before: Myron S. Bright,1 Stephen Reinhardt, and Stephen S. Trott, Circuit Judges.
Mario Ernesto Navas seeks review of the BIA's decision denying both asylum and withholding of deportation. Navas fled El Salvador at age 17 after members of the Salvadoran military murdered his aunt, shot at him, threatened him with death, and assaulted his mother. Previously, in 1988, Navas's uncle, a member of the Frente Farabundo Marti para la Liberacion Nacional (FMLN), a guerilla group opposed to the government, was murdered because of his membership in that group. The IJ and, in turn, the BIA denied Navas's application for asylum and withholding of deportation. The BIA based its decision upon two grounds: first, that Navas had not demonstrated persecution; and second, that, even if the incidents in question rose to the level of persecution, they were not committed on account of Navas's political opinion. Because the evidence would compel any reasonable fact-finder to reach a contrary conclusion with respect to both points, we reverse.
Mario Ernesto Navas is a 26 year old native and citizen of El Salvador. He arrived in this country on September 8, 1992, and applied for asylum and withholding of deportation pursuant to Section 208 and 243(h) of the Immigration and Nationality Act ("INA") two months later. See 8 U.S.C. SS 1158 and 1253(h).
The facts upon which Navas's claim is based are simple. Navas left El Salvador as a seventeen-year old because he feared that the same members of the Salvadoran military who had murdered his aunt and attacked him would in turn murder him. On June 9, 1992, Navas was walking towards his aunt's house when he saw three men leaving her home. He recognized the three men as members of the military forces that were stationed in his home town. When Navas saw the three men, they also spotted him. They chased him and shot at him. However, Navas was able to escape and hide out until the next day, when his mother went to his aunt's home and found that his aunt had been murdered.2 On the same day that his mother found his aunt's body, the three soldiers who Navas had seen leaving his aunt's house went to his mother's home in search of him. When they discovered that he was not there, they beat his mother and threatened to kill both mother and son unless Navas left the country. Navas left El Salvador that same night--one day after the murder of his aunt.
At the asylum hearing held in early January 1997, Navas testified that his family had been politically active prior to his aunt's murder. His aunt's husband, Navas's uncle, had been a member of the Frente Farabundo Marti para la Liberacion Nacional ("FMLN"), a guerilla group opposed to the Salvadoran government and had been murdered because of his membership in that group. Navas himself had been politically active while in El Salvador, although he was only seventeen when he left the country. According to Navas, he helped distribute political propaganda in his hometown. He also testified that the three soldiers who threatened him knew that he had distributed political materials3.
Since Navas's flight to the United States, the surviving members of his family have left his home town in El Salvador and are now here.4 In El Salvador, however, the soldiers who murdered his aunt, beat his mother and threatened his life have been incorporated into the national civil police. As a result, Navas fears the consequences of returning to El Salvador. In fact, the IJ noted Navas's emotional state at the time of testimony:
As part of the administrative record, Navas submitted extensive materials documenting the prevalence of human rights violations in El Salvador by both the government and its opponents. These documents substantially corroborate Navas's account. For example, the 1992 report, The Work of Americas Watch, notes with respect to El Salvador the The Work of Americas Watch, 213 (1992). According to the report, "available evidence demonstrates that some military actions have been aimed directly at civilians living in conflict zones, apparently to punish them for presumed guerilla sympathies." Id. at 217. The report also notes the complete immunity with which the military typically acted.
On January 16, 1992, the government of El Salvador and the FMLN signed a peace accord ending 12 years of civil conflict. By the end of 1992, however, the implementation of the accord was in serious jeopardy. Although the reports in the record acknowledge that human rights abuses diminished, politically motivated killings and death threats continued to be commonplace. In fact, the pattern of attacks against those engaged in opposition political activity increased.5 Attacks on FMLN leaders raised suspicions of political motivation, particularly in light of the fact that the attacks went largely unpunished. As the 1993 Americas Watch report puts it, "[t]he near-complete and on-going paralysis of the judicial system continued to ensure that the Salvadoran state, if not guilty of direct involvement in abuses, was complicit by failing to investigate or to take preventive action."6 The report's conclusion is supported by the fact that members in training of the new National Civil Police included former members of the National Guard and Treasury Police, who were unlikely to police either themselves or their former colleagues rigorously.
Even in 1995, when the FMLN participated in elections as a legal political party, the National Civil Police (PNC) continued to be implicated in killings, torture, and arbitrary detention. Arbitrary executions and death threats still went unpunished. In its 1996 report, Americas Watch notes that, although human rights abuses diminished somewhat, vigilante killings and police abuse continued. Moreover, municipal police forces continued to be associated with serious human rights abuses.
Despite all of the uncontested evidence, both testimonial and documentary, the Immigration Judge ("IJ") denied Navas's application for asylum and withholding of deportation pursuant to Section 241(a)(1)(B) of the INA, 8 U.S.C. S 1251(a)(1)(B). In an oral decision, the IJ concluded that "what the respondent testified to probably happened," and that the issue was whether a claim for asylum could be predicated upon those events.7 The IJ concluded that it could not, finding that "[t]he respondent fears returning because three men believed he witnessed a murder, a criminal act, and that is not a basis to be granted asylum in the United States." The IJ did, however, grant Navas voluntary departure.
Navas appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's decision on March 4, 1998. The BIA held first that "the respondent failed to demonstrate that a reasonable person in his circumstances would fear persecution on account of one of the five enumerated grounds for asylum," and second that, as a necessary result, Navas "failed to satisfy the higher standard of proof for eligibility for withholding of exclusion and deportation." More specifically, the BIA concluded that Navas had failed to demonstrate that he was the victim of acts that constituted persecution, and that no evidence in the record suggested that the reason behind the soldiers' actions with respect to Navas was that they imputed a political opinion to him. Rather, the BIA agreed with the IJ's conclusion that the murder of Navas's aunt by three military personnel was not politically motivated, and that the murderers' interest in finding Navas "relate[d] to his ability to identify them, not to a desire to harm him on account of one of the enumerated grounds of persecution."
Navas then petitioned this court for review on March 30, 1998, pursuant to 8 U.S.C. S 1105(a). In this case, we review the BIA opinion, rather than the Immigration Judge's, because the BIA conducted an independent review of the record and provided its own grounds for affirming the IJ's decision. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).
The Attorney General may, in her discretion, grant asylum to an applicant determined to be a refugee, within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. S 1101(a)(42)(A). Refugee status is established by evidence that an applicant is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987); Singh v. Ilchert, 63 F.3d 1501, 1505 (9th Cir. 1995). A well-founded fear of future persecution may be established by proving either past persecution or "good reason" to fear future persecution."8 Vilo...
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