Ruano v. Ashcroft, 01-70915.

• Decision Date: 29 August 2002
• Docket Number: No. 01-70915.,01-70915.
• Citation: 301 F.3d 1155
• Parties: Edin Arcenio RUANO, Petitioner, v. John ASHCROFT, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

301 F.3d 1155

Edin Arcenio RUANO, Petitioner, v. John ASHCROFT, Respondent.

No. 01-70915.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 2002.

Filed August 29, 2002.

Amos Lawrence (argued), San Francisco, CA, for the petitioner-appellant.

Audrey Benison Hemesath (argued), United States Department of Justice, Office of Immigration Litigation, Washington, D.C. Appearances only by Robert D. McCallum Jr., United States Department of Justice, Civil Division, Richard M. Evans, United States Department of Justice, Washington, D.C.; and Alison R. Drucker United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A72-140-951.

Before: SCHROEDER, Chief Judge, D.W. NELSON and REINHARDT, Circuit Judges.

D.W. NELSON, Circuit Judge.

When you have received multiple death threats at your home and place of business; when you have been followed by and narrowly escaped four armed men trying to kill you; and when you have been targeted because of your membership in a political party, a rational factfinder could only conclude that you have suffered past persecution.

FACTUAL AND PROCEDURAL BACKGROUND

Edin Arcenio Ruano is a native and citizen of Guatemala. In 1991, Ruano fled his native country with the intention of coming to the United States. In February of the same year, he entered the U.S. near San Ysidro, California; his entry was made, however, without inspection by the INS as required by federal statute. See 8 U.S.C. § 1251(a)(1)(B) (1994) (now codified at 8 U.S.C. § 1227(a)(1)(B)). Approximately five years after Ruano made his way across the border, he was tracked down by the INS and served with an Order to Show Cause.

At his initial appearance before the Immigration Judge ("IJ"), Ruano conceded that he was deportable as charged, but requested asylum and withholding of deportation based on persecution he had allegedly faced in Guatemala. The IJ continued the hearing to a later date, at which time the immigration court heard Ruano's evidence of persecution.

A. Ruano's testimony before the IJ

Ruano testified that around the age of 25, he joined a political party in Guatemala known as the National Center Union, or "UCN." When he joined the party, Ruano was made Assistant Secretary General of the UCN's Guatemala City chapter. His duties as Assistant Secretary General were varied, but included attending meetings, delivering documents, giving talks to people both inside and outside Guatemala City, driving a party vehicle on weekends, and organizing about one mass protest every year. Ruano also testified that he got a job working for the government, and that his father was a military recruiter.

In 1985, about a year after he joined UCN, Ruano testified that he began receiving death threats in the mail. The threatening letters would come to both Ruano's home and to his work. The death threats were always signed with the nickname "Los Gavilanes" (translated: "the sparrow hawks"). When Ruano asked his co-workers about Los Gavilanes, he was told that they were a guerilla organization that operated in Guatemala.

Ruano testified that the letters threatening him with death came consistently from 1985 until 1991, and that all told, he received 30 to 35 letters — the last four of which he saved and were admitted into evidence below. Ruano testified that the letters routinely mentioned his membership in the UCN as a reason why he was being targeted.¹ An excerpt from one of the letters reads: "We've been observing that you are involved with the shit of a queer party as is UCN, we're giving you a time limit of 15 days so you get the hell out of here, you son of a bitch ... if you don't leave we'll kill you right away." Ruano sought help on several occasions from the Guatemalan police and showed them the letters he had been receiving. However, Ruano testified that the police were never able to help and that they would only promise that they would investigate.

Things got worse for Ruano in 1987. Until that point, he had maintained his membership in UCN and refused to heed the letters' demand that he leave the country. But beginning that year (1987) and continuing to 1991, four armed men in a black Toyota began following Ruano and tried to corner him on several occasions. Ruano testified that he had many face-to-face close calls with his anonymous pursuers, but that they were never able to catch him. When they would come to his home, and even ask his mother to divulge his whereabouts, Ruano would evade the men by escaping through neighbors' houses. He also eluded the men by going out the back door when they came to his office, by riding public transportation (and getting off at different stops) instead of taking his chauffeured government car, and, toward the end of his time in Guatemala, by living at a neighbor's home. Ruano stated that during the same time that he was being pursued (1987-1991), he would hear through friends and the media that other members of UCN — 10 to 15 people according to Ruano's testimony — had been killed by guerillas.

In 1989, Ruano decided that, due to the continuing death threats and pursuit by the men in the black Toyota, he had to quit his involvement with UCN or he would end up dead like his former UCN co-workers. When quitting the party failed to stop the threats and harassment, Ruano decided to quit his job as well because he felt it was no longer safe to work there. This, again, did nothing to deter his persecutors. Finally, on February 6, 1991, one week after receiving yet another letter threatening his death, Ruano decided enough was enough — he fled Guatemala and headed for the U.S.

Ruano testified that after he left Guatemala, he still kept up with events in his native country. Two events that he heard about after he left bear repeating. First, the head of the Guatemala City chapter of UCN, Jorge Carpio Nicol, was killed by guerillas in 1993. Second, Ruano's father, who had remained in Guatemala disappeared, and Ruano believes that he has been killed by guerillas as well.

B. The IJ and BIA decisions

The IJ denied Ruano's asylum and withholding of deportation requests. In his oral decision, the IJ did not make an adverse credibility finding as to Ruano's testimony. However, the IJ decided that there was "simply not enough evidence in the record to support a finding that this respondent [Ruano] was ever harmed, or harmed to a level that could be described as persecution, in any way in Guatemala." The IJ also relied on a State Department report to conclude that no one would have an interest in harming Ruano if he were sent back because only high-profile activists were targeted, and only in their home communities. The IJ therefore denied Ruano's application for asylum and withholding of deportation, but did allow him voluntary departure.

On appeal, the BIA affirmed the IJ's denial of Ruano's application for asylum and withholding. The BIA determined that it had to accept Ruano's testimony as credible, given that the IJ made no adverse credibility finding. However, the BIA concluded that even taking Ruano's story at face value, he was not "harmed to the level of persecution." More specifically the BIA relied on our decision in Lim v. INS, 224 F.3d 929 (9th Cir.2000), to conclude that the threats Ruano received did not constitute past persecution. In addition, the BIA held that Ruano could not show a well-founded fear of future persecution because his fear was not objectively reasonable and because he would be able to relocate to another part of Guatemala and avoid persecution.

STANDARD OF REVIEW

This case falls under IIRIRA's transitional rules. Ruano's petition for review is therefore before the panel under formerly-existing 8 U.S.C. § 1105a(a), which allows a Court of Appeals to review denials of discretionary relief by the INS. Under § 1105a(a), the panel must uphold the BIA's denial of asylum if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Reyes-Guerrero v. INS, 192 F.3d 1241, 1244 (9th Cir.1999) (citations and internal quotation marks omitted); INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (stating that the BIA should be reversed only if no reasonable factfinder could find the petitioner ineligible for asylum). The BIA's denial of withholding of deportation is similarly reviewed for substantial evidence. Id.

DISCUSSION

Because neither the BIA nor the IJ made an adverse credibility finding, we accept Ruano's testimony before the IJ as true. Lim, 224 F.3d at 933. Ruano's testimony, along with documentary evidence in the record, indicates that he was targeted for death threats and harassment (by armed men) at least in part because of his membership in UCN. Ante at 1157-58; see also Lim, 224 F.3d at 934 (explaining that persecution is on account of political opinion so long as the political opinion is at least part of the motivation for the persecution). Because he was targeted because of his political beliefs, and accepting Ruano's testimony as true, we hold that a reasonable factfinder could only have concluded that Ruano was eligible for asylum and entitled to withholding of deportation.

A. Legal Framework

In order to be eligible for asylum and/or withholding of deportation, Ruano must show that he is "unwilling or unable" to return to his 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. § 1101(a)(42)(A) (defining "refugee"). Persecution is "the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive." Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir.2002) (internal quotation marks and citations omitted).

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