Ochave v. Immigration & Naturalization Serv.
| Decision Date | 17 April 2001 |
| Docket Number | No. 99-70739,99-70739 |
| Citation | 254 F.3d 859 |
| Parties | (9th Cir. 2001) QUIRINO CANEDO OCHAVE AND FELICITAS PAGADOR OCHAVE, PETITIONERS, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT |
| Court | U.S. Court of Appeals — Ninth Circuit |
Judith L. Wood, Los Angeles, California, for the petitioners.
Mary Jane Candaux, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of a Decision of the Board of Immigration Appeals INS Nos. A70 945 061 A72 261 221
Before: Harry Pregerson, Ferdinand F. Fernandez, and Susan P. Graber, Circuit Judges.
Pasadena, California
Opinion by Judge Graber; Dissent by Judge Pregerson
Petitioner Felicitas Ochave (Felicitas) and her husband, Petitioner Quirino Ochave (Quirino), who are natives and citizens of the Philippines, sought asylum and withholding of deportation. Their claims were consolidated for hearing and denied by an immigration judge (IJ). On review, the Board of Immigration Appeals (BIA) affirmed the IJ's decision. Petitioners seek review. For the reasons that we discuss below, we deny the petition for review in part and dismiss it in part.
We review for substantial evidence a factual determination that a petitioner has failed to demonstrate eligibility for asylum. 8 U.S.C. §§ 1105a(a)(4). When reviewing for substantial evidence, we must uphold the IJ's findings unless the evidence not only supports, but compels, contrary findings. INS v. Elias-Zacharias, 502 U.S. 478, 481 n.1 (1992). Where, as here, the BIA simply adopted the IJ's findings and reasoning, it is the IJ's decision that we review for substantial evidence. Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir. 1999); Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996).
Quirino and Felicitas Ochave, husband and wife, are natives and citizens of the Philippines. They lived with their four children in a small town in Pangasinan, a province of the Philippines.
Quirino worked as a cook on a ship. In August 1987, his ship docked in Texas. He entered the United States using a 29-day crew member's pass, and he remained here. The following month, Felicitas entered the United States on a visitor's visa. Their four children stayed in Manila with Felicitas' brother. After Felicitas' visa expired, she remained with Quirino in the United States.
In 1995, the INS initiated deportation proceedings against Quirino and, separately, against Felicitas. They admitted deportability but requested asylum, withholding of deportation, voluntary departure, or suspension of deportation. Their cases were consolidated for a hearing on the merits.
Petitioners' claims for asylum or other relief both are dependent on the claim of Felicitas. Her claim, in turn, is based on her testimony that, in 1986, she and her daughter were raped by two armed men. In her application, she asserted that the two rapists were members of a Marxist guerrilla organization, the New People's Army, and that the attack was on account of an imputed political opinion arising from her father's position as a "Municipal Counselor" in their region of the Philippines:
My father was employed by the government in the year that the rape occurred. The two men who raped my daughter and I were members of the guerrillas who were trying to overthrow the government. Because my father had a title, "Municipal Counselor", my family was viewed as being reactionary in the Marxist eyes of the Communist guerrillas.
The application contained no information concerning why Felicitas believed that the rape was politically motivated.
At the hearing, she was asked about her reasons for believing that there was a connection and testified as follows:1
Felicitas also testified that she did not know the rapists before the attack, that they did not identify themselves in any way during the attack, and that they were "people from the mountains," not from the town in which she lived. She further testified that she saw the rapists once (or not at all) after the rape, apparently without any words passing between them. 2
After the rape, Felicitas moved from her town to Manila. She and her children lived there, without incident, for nearly a year before she came to the United States.
The IJ rejected Felicitas' application for asylum (and Quirino's derivative application), for two reasons. First, the IJ concluded that Petitioners had not established a connection between the rape and a protected ground. Although Felicitas made reference to her father's governmental position, she "did not make any connection" between that fact and the rape.
Second, in the alternative, the IJ relied on Felicitas' voluntary and successful relocation to Manila as a ground for denying asylum. Because she had lived in Manila, without incident, for nearly a year before coming to the United States, the IJ concluded, Felicitas had not established a well-founded fear of future persecution in the Philippines.
Based on his conclusion that Quirino and Felicitas had failed to establish the grounds for asylum, the IJ concluded that they necessarily had failed to meet the higher standard of proof required for withholding of deportation.
Finally, with respect to suspension of deportation, the IJ found that Felicitas and Quirino had resided continuously in the United States since 1987, that they had demonstrated good moral character, that they were employed, and that they had no criminal history. The IJ also found, however, that they could not demonstrate that they would suffer "extreme hardship" if they were deported, a showing that is required under 8 U.S.C. §§ 1229(b). For that reason, the IJ declined to exercise his discretion to grant a suspension of deportation.
On review, the BIA affirmed the IJ's decision and adopted his findings and reasoning. The BIA granted voluntary departure and dismissed the appeal.
This timely petition for review followed.
As a threshold matter, Respondent argues that we lack jurisdiction over Felicitas' petition for review, because Petitioners filed a single petition for review in Quirino's name only. The petition for review is not part of our record on appeal and, accordingly, we cannot verify Respondent's assertion from the documents before us.
In any event, however, Quirino's claim for asylum is derivative of Felicitas' claim. Their applications were consolidated for hearing and on appeal. Both applications stand or fall on the question whether the rape of Felicitas and her daughter was "on account of" an imputed political opinion. Where, as here, the IJ and the BIA address spouses' applications for asylum together, we do the same on appeal. Chand v. INS, 222 F.3d 1066, 1069 n.2 (9th Cir. 2000). In the circumstances, Respondent's argument that the single petition for review is insufficient to confer jurisdiction over Felicitas' petition -- an argument for which Respondent offers no authority -- is not well taken.
1. Past Persecution
At the outset, it is useful to catalogue what is not at issue:
(1) A husband may apply for asylum as a derivative beneficiary of his wife's application. 8 U.S.C. §§ 1158(b)(3).
(2) Rape is the kind of infliction of suffering or harm that may support a finding of past persecution, provided that the applicant demonstrates that the rape was on account of a statutorily protected ground, such as an imputed political opinion. Lopez-Galarza v. INS, 99 F.3d 954, 958-59 (9th Cir. 1996).
(3) Petitioners bear the burden of establishing their eligibility for asylum; here, they bear the burden of establishing that the rape was "on account of" an imputed political opinion. 8 C.F.R. §§ 208.13(a).
(4) Felicitas testified that the rapists were Marxist guerrillas. The IJ questioned the basis for that testimony, but ultimately resolved the case on another ground. For purposes of review, we accept Felicitas' assertion that the...
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