359 F.3d 1169 (9th Cir. 2004), 02-71656, Thomas v. Ashcroft

Docket Nº:02-71656.
Citation:359 F.3d 1169
Party Name:Michelle THOMAS; David George Thomas; Tyneal Michelle Thomas; Shaldon Waide Thomas, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
Case Date:March 02, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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359 F.3d 1169 (9th Cir. 2004)

Michelle THOMAS; David George Thomas; Tyneal Michelle Thomas; Shaldon Waide Thomas, Petitioners,

v.

John ASHCROFT, Attorney General, Respondent.

No. 02-71656.

United States Court of Appeals, Ninth Circuit

March 2, 2004

Argued and Submitted Nov. 6, 2003.

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Errol I. Horwitz and Edward M. Bialack, Woodland Hills, CA, for the petitioners.

Hillel R. Smith (argued) and Alison Marie Igoe (brief), Office of Immigration Litigation, Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before PREGERSON, FERNANDEZ, and BERZON, Circuit Judges.

OPINION

PREGERSON, Circuit Judge.

This matter comes to us from the Board of Immigration Appeals ("BIA"). The petitioners seek review of the BIA's denial of their application for asylum and withholding of deportation. For the reasons discussed below, we grant the petition and remand.

FACTUAL AND PROCEDURAL HISTORY

Michelle Thomas, her husband David Thomas, and their two children, Shaldon Thomas and Tyneal Thomas, are citizens and natives of South Africa. They entered the United States as visitors at Los Angeles, California on May 28, 1997. Apparently within one year of their arrival, they filed requests for asylum pursuant to § 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158. Michelle Thomas is the principal asylum applicant; David, Shaldon, and Tyneal are derivative applicants.

At a hearing on December 2, 1998, the petitioners conceded their removability and requested asylum and withholding of removal. On May 12, 1999, the Immigration Judge ("IJ") held an evidentiary hearing. Michelle Thomas was the only petitioner who testified at the hearing.

Michelle testified that the petitioners came to the United States to avoid threats of physical violence and intimidation they were subjected to because of abuses committed

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by Michelle's father-in-law. Michelle's father-in-law, "Boss Ronnie," was a foreman at Strongshore Construction in Durban, South Africa. He allegedly was and is a racist who abused his black workers both physically and verbally.

At the hearing, Michelle testified about a number of events that support the petitioners' fears. The first took place in February 1996, when their dog was apparently poisoned. At the time of that incident they did not connect it with the conduct of Michelle's father-in-law. The next month, the petitioners' car was vandalized, and its tires were slashed, though nothing was taken out of the car. Apparently the police came, took fingerprints, and patrolled the area but did not do anything else. Michelle testified that the petitioners told her father-in-law about the incident, and that he told them he had just had a confrontation with his workers and that the petitioners should buy a gun.

In May of 1996, human feces were thrown at the door of the petitioners' residence while they were at home. After hearing the noise, the petitioners saw people running away. Apparently feces were left outside their front and back gates at other times after that. The petitioners then had higher fencing installed and bars put on their windows; they got a guard dog and requested additional police patrols.

In December 1996, Michelle's life was threatened. She describes the incident as follows:

I was sitting on the veranda the one evening with my children playing in the front yard and a Black man had come up to me and asked me if I knew Boss Ronnie ... and he said to me he's come back and cut my throat. At that stage I'd taken the kids inside. The kids were very upset.... At this stage I was really, really fearing for my life.

Apparently the individual who approached Michelle was wearing overalls bearing a Strongshore logo.

Next, in March of 1997, Michelle was apparently outside of her gate, on the way to the store, when four black men approached her and tried to take her daughter from her arms. "[T]hey surrounded me and the next thing I knew is that they were trying to get Tyneal out my arms. I held her tight and fell to the ground with her...." The men apparently ran off after Michelle's neighbor had come out of his house in response to Michelle's screaming. Michelle testified that one of the men wore Strongshore overalls. She testified that, after this incident she was scared that "they were going to come back and either kill one of us or take one of my children." It was at that point that Michelle decided that she needed to leave.

In a declaration, Michelle also testified that her brother-in-law had his house broken into and his car vandalized several times, and that he and his family had received threats. She speculated that her family, rather than her father-in-law, was the subject of attacks because her father-in-law lived in what was essentially a "fortress." In addition to the evidence of particular attacks on their family, the petitioners also submitted evidence of the widespread crime problem in South Africa.

On August 30, 1999, the IJ denied the petitioners' request for asylum and withholding of removal. The IJ determined that the respondent was fearful for her life and the lives of her family "because she believes as a White citizen of South Africa that she is subject to persecution by Black citizens of South Africa.... The respondent's position is that she and her family are being attacked because of their race." In a decision that is somewhat imprecise, the IJ made a number of relevant statements. The IJ noted that South Africa

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has a high crime rate, but that "[i]t appears ... that the incidents of crime, attacks on individuals is not restricted to Blacks committing crimes against Whites." The IJ also noted that there is nothing to indicate that the South African government is "sponsoring or promoting or condoning violence of Whites against Blacks or Blacks against Whites or any other group of people." The IJ also appears to have believed that there was nothing political in the attacks against the petitioner: "It does not say anything about the father-in-law's political position or the political position of the people who are allegedly persecuting them or committing these offenses against them."

While the IJ apparently accepted Michelle's statements as credible for certain purposes, the IJ noted that she did not find Michelle's testimony to be totally credible.

There were some inconsistencies regarding some of the incidents. For example, there was confusion over whether the report of the vandalism was made to the police or not. Also, in her application for political asylum, in her declaration, it appeared that they were not clear as to the actual cause of death of the dog. That at one point the veterinarian said it looks like the dog had been poisoned, but even that in the declaration was not clear. It is still puzzling to the Court as well that the family would be targeted because of the father-in-law had been the foreman of this company for such a long period of time.... [T]he father-in-law has held these attitudes from years back and, therefore, he was probably as racist in 1986 as he was in 1996, so there is no explanation as to why these attacks against her family suddenly began in 1996.

The IJ concluded: "Therefore, ... the Court finds that the respondent has failed to meet her burden of proving, of demonstrating that she and her family suffered persecution in South Africa based on any of the five statutory grounds whether it is race or political opinion."

The petitioners filed a timely appeal to the BIA. On May 16, 2002, the BIA affirmed the decision of the IJ without opinion. The petition for review was filed with this court on June 11, 2002.

STANDARD OF REVIEW

We review the BIA's decision that an alien has not established eligibility for asylum or withholding of removal to determine whether it is supported by substantial evidence. Wang v. Ashcroft, 341 F.3d 1015, 1019-20 (9th Cir. 2003); see also Monjaraz-Munoz v. I.N.S., 327 F.3d 892, 895 (9th Cir. 2003) ("We review the BIA's findings of fact, including credibility findings, for substantial evidence and must uphold the BIA's finding unless the evidence compels a contrary result."). While purely legal issues are reviewed de novo, the BIA's interpretation of immigration laws is entitled to deference. Kankamalage v. I.N.S., 335 F.3d 858, 861-62 (9th Cir. 2003). Where, as here, the BIA affirms the results of the IJ's decision without issuing an opinion, see 8 C.F.R. § 1003.1(a)(7), we review the IJ's decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir. 2003).

ANALYSIS

A. Relevant Legal Standards

1. Asylum

The Attorney General may grant asylum to an alien who qualifies as a refugee, that is, one who is unable or unwilling 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. §§ 1101(a)(42)(A), 1158(b)(1).

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Persecution is " 'the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.' " Prasad v. I.N.S., 47 F.3d 336, 339 (9th Cir. 1995) (quoting Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir. 1988)). The "heavily fact-dependent" issue of persecution can be framed as follows: "looking at the cumulative effect of all the incidents Petitioner has suffered, [does] the treatment she received rise[ ] to the level of persecution[?]" Singh v. I.N.S., 134 F.3d 962, 967 (9th Cir. 1998). "Persecution need not be directly at the hands of the...

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