Agbuya v. Immigration & Naturalization Serv., 98-70965

• Decision Date: 12 March 2001
• Docket Number: No. 98-70965,98-70965
• Citation: 241 F.3d 1224
• Parties: (9th Cir. 2001) ESTHER JOSEPHINE BUNUAN AGBUYA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1224

241 F.3d 1224 (9th Cir. 2001)

ESTHER JOSEPHINE BUNUAN AGBUYA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70965

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 16, 1999

Opinion and Dissent Filed July 18, 2000

Opinion Amended March 12, 2001

[Copyrighted Material Omitted]

Raquel M. Perez, Encino, California, for the petitioner.

Donald E. Keener, Washington, D.C., Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. I & NS No. A-70-5411-362

Before: Mary M. Schroeder, Chief Judge, Betty B. Fletcher and Cynthia Holcomb Hall, Circuit Judges.

Opinion by Judge B. Fletcher; Dissenting Opinion by Judge Hall

ORDER AND AMENDED OPINION AND DISSENT

BETTY B. FLETCHER, Circuit Judge:

ORDER

The opinion filed July 18, 2000 and published at 219 F.3d 962 (9th Cir. 2000) is amended as follows:

1. On page 966, just before the subheading, "B. Analysis," insert the following:

We review the BIA's factual findings under the substantial evidence standard. The findings must be supported by reasonable, substantial, and probative evidence on the record considered as a whole. 8 U.S.C. S 1105(a)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Reversal should occur where the evidence is such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. See Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir. 2000).

2. On page 966, in the paragraph beginning "We disagree.", change the sentence beginning "The evidence shows that the communist NPA" to read: A reasonable fact finder would have to conclude that the communist NPA interpreted Agbuya's actions as an affront to their cause:

3. On page 967, at the end of the paragraph beginning "The dissent argues," replace the sentence that reads,"As such, she is entitled to political refugee status." with the following sentences: The BIA erred because its determination was not supported by reasonable, substantial, and probative evidence on the record considered as a whole. Agbuya is entitled to political refugee status.

With these amendments made, a majority of the panel has voted to deny the petition for rehearing and petition for rehearing en banc. Judge Hall voted to grant the petition for rehearing and petition for rehearing en banc.

The full court received the petition for rehearing en banc. An active judge called for an en banc vote, and a majority of the active judges of the court, advised of the within amendments, has voted to deny the petition for rehearing en banc. Fed. R. App. P. 35(b).

The petition for rehearing and petition for rehearing en banc are DENIED.

OPINION

Esther Josephine Bunuan Agbuya, a citizen of the Philippines, petitions for review of the Board of Immigration Appeals' (BIA) dismissal of her appeal from an Immigration Judge's (IJ) denial of her application for asylum and withholding of deportation pursuant to 8 U.S.C. SS 1158(a) and 1253(h). Agbuya argues that she has a well-founded fear that the New People's Army (NPA) will persecute her if she returns to the Philippines, and that such persecution will be "on account of" her political opposition to the NPA's communist cause. We have jurisdiction to entertain a petition for review of the BIA's decision pursuant to section 106(a) of the Immigration and Nationality Act (INA), 8 U.S.C.S 1105a(a).¹ We grant the petition for review, find petitioner eligible for asylum and grant her application for withholding of deportation.

I.

Esther Agbuya lived in northern Luzon, the Philippines, and had worked since 1980 for the Benguet Mining Company in the personnel department. She was responsible for terminating employees or notifying individuals that they were being disciplined for various infractions and employment related difficulties. From 1985-1991, the company implemented a series of retrenchments. During this period, Agbuya had serious problems with the union of miners, who disagreed with the retrenchment policy and the order in which workers were being dismissed. On one occasion, the miners rallied against her, displaying signs that called for her firing. Agbuya learned that the union had been infiltrated by members of the New People's Army ("NPA"), an armed communist guerilla group responsible for numerous deaths and kidnappings. She began to receive telephone calls demanding her resignation and threatening her family if she failed to comply. Afraid of retaliation by the NPA, she resigned on July 12, 1991.

On September 1, 1991, almost two months after her resignation, Agbuya was waiting for her husband to pick her up in Baguio City, fourteen kilometers from the mine, when she was abducted by three heavy-set men whom she did not know. They forced her into a car and drove her to a house over an hour away. They held her captive for one week, keeping her blindfolded the entire time and subjecting her to physical abuse. On one occasion, they placed a gun in her mouth. During the course of her captivity, Agbuya's kidnappers identified themselves as NPA members sympathetic to the plight of the Benguet miners. The NPA kidnappers told her they would try her in a kangaroo court for her abuse and mistreatment of the workers. Agbuya was extremely frightened to say anything about her view of the labor situation, so she simply told the men that they should sit down and present their ideas to the government. Agbuya was afraid for her own life, and for the welfare of her youngest child who was still nursing at the time.

The guerillas demanded a ransom of 150,000 pesos from her family. She was released on September 8 after her family paid the full ransom. But the guerillas warned Agbuya that wherever she worked, they would keep her under surveillance. Following the abductors' instructions and afraid of further reprisal, Agbuya and her family never reported the kidnapping to the police or to the mining company. Agbuya was too frightened to return home for several months. On April 25, 1992, she came to the United States and later applied for asylum. During her absence, her family has received several phone calls checking on her whereabouts.

II.

On October 17, 1995, an Immigration Judge denied Agbuya's application for asylum and withholding of deportation, but granted voluntary departure. Although the IJ had "no difficulty with her credibility," she concluded that Agbuya had not established a well-founded fear of persecution. The BIA affirmed, concluding that any persecution Agbuya had previously suffered was not on account of her political opinion. The BIA found that "[t]he direct and circumstantial evidence does not support an inference that the miners' threats and actions against her were motivated by anything other than their anger at adverse personnel actions . . . which they considered to be unfair or in violation of their contract." Agbuya timely petitioned this court for review of the BIA's decision.

A. General Standards for Asylum Eligibility

To be eligible for asylum, Agbuya must show that she is "unwilling or unable" to return to her home 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. S 1101(a)(42)(A) (defining "refugee"). To establish a well founded fear of persecution, Agbuya must show her fear to be both objectively reasonable and subjectively genuine. See Fisher, 79 F.3d at 960. The objective component of this test requires showing "by credible, direct, and specific evidence in the record, that persecution is a reasonable possibility." MezaManay v. INS, 139 F.3d 759, 763 (9th Cir. 1998) (quoting Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995)). This showing may be made "by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant." Id. "[P]ersecutory conduct may have more than one motive, and so long as one motive is one of the statutory grounds, the requirements have been satisfied. " Singh v. Ilchert, 63 F.3d at 1509; see Briones v. INS, 175 F.3d 727, 729 (9th Cir. 1999); Borja v. INS, 175 F.3d 732, 735 (9th Cir. 1999); Ratnam, 154 F.3d at 994; Rodriguez-Roman v. INS, 98 F.3d 416, 430 n.23 (9th Cir. 1996).

Evidence of past persecution alone can establish a well founded fear. See id. Establishing past persecution triggers a rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R. S 208.13(b)(1)(i). The INS can rebut this presumption by showing by a preponderance of the evidence that conditions "have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return." Id.

Where an asylum applicant relies on past persecution on account of political opinion to establish a rebuttable presumption of a well-founded fear of future persecution, she must show that (1) she was a victim of persecution, (2) she holds a political opinion or has had one imputed to her, (3) her political opinion was known to or imputed by her persecutors, and (4) the persecution was on account of her actual or imputed political opinion. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997). When an applicant has been persecuted because of an opinion imputed to her, our analysis focuses on how the persecutor perceived the applicant's actions and allegiances, and what motivated their abuse. In Sangha, we held that:

In establishing an imputed political opinion, the focus of inquiry turns away from the views of the victim to the views of the persecutor. We consider, however, not the persecutor's own political opinions, but rather the political views the persecutor rightly or in error attributes to his victims. If the persecutor attributed a political opinion to the victim, and acted upon the attribution, this imputed view...