388 F.3d 629 (8th Cir. 2004), 03-2818, De Brenner v. Ashcroft

Docket Nº:03-2818.
Citation:388 F.3d 629
Party Name:Thays Xinia Guerrero DE BRENNER; Roberto Leonardo Brenner-Galarza; Romina Mariana Brenner-Guerrero, Petitioners, v. John ASHCROFT, Attorney General of the United States of America, Respondent.
Case Date:November 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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388 F.3d 629 (8th Cir. 2004)

Thays Xinia Guerrero DE BRENNER; Roberto Leonardo Brenner-Galarza; Romina Mariana Brenner-Guerrero, Petitioners,

v.

John ASHCROFT, Attorney General of the United States of America, Respondent.

No. 03-2818.

United States Court of Appeals, Eighth Circuit

November 10, 2004

Submitted: June 14, 2004

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Daniel L. Palmquist, argued Minneapolis, MN (Amy Schroder Ireland, Minneapolis, MN, on the brief), for petitioner.

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Paul Fiorino, argued, USDOJ, Office of Immigration Litigation, Washington, DC.

Before LOKEN, Chief Judge, HEANEY and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Petitioners appeal the Board of Immigration Appeals's ("BIA") reversal of an immigration judge's decision to grant asylum. The immigration judge found that the petitioners were credible and subject to past persecution in their home country of Peru. The immigration judge further found that evidence of changed country conditions did not overcome the presumption of a well-founded fear of future persecution. The BIA, however, concluded that the immigration judge failed to determine if the past persecution occurred due to a protected statutory basis. The BIA proceeded to determine that any past persecution occurred due to the petitioners' wealth rather than a protected statutory basis such as political opinion. The BIA also made an alternative finding that, even if persecution occurred due to a statutory basis, changed country conditions removed any objectively reasonable fear of future persecution.

Regarding the issue of past persecution, we reverse. The administrative record compels the conclusion that the petitioners suffered persecution due at least in part to a statutory basis, namely, imputed political opinion. Further, in reaching its alternative finding on the issue of changed country conditions, the BIA failed to place the burden of proof on the Immigration and Naturalization Service ("INS") (now the Department of Homeland Security, "DHS") to show that changed country conditions overcame the presumption of a well-founded fear of future persecution. Accordingly, we remand to the BIA for reconsideration on the issue of changed country conditions.

I.

The immigration judge specifically found the petitioners credible. He based his decision to grant asylum, in part, on his credibility determination. Although the BIA reversed the immigration judge's ultimate conclusions, it did not reject his credibility findings. Accordingly, we review the record and set forth our detailed recitation of the facts in a light that reflects these credibility findings.

Lead petitioner Thays Xinia Guerrero De Brenner ("Ms. De Brenner") was born in 1966 and comes from a Peruvian family of eight that was wealthy by local standards. Her mother was a professor of nursing, and her family owned a cocoa plantation and local shoe store in the city of Ayacucho. They also owned a hotel in the nearby coastal city of Ica.

In 1982, guerrillas with a Marxist, revolutionary, terrorist group known as Sendero Luminoso ("Shining Path") targeted her family. The Shining Path originated near Ayacucho around 1980. Ms. De Brenner described the Shining Path as a group whose goal was to take from the rich and give to the poor. From 1982 until as late as 1997, Ms. De Brenner's family received direct threats, some of which were extortionate demands, from Shining Path guerrillas. Some of the threats were notes signed by Abimael Guzman, leader of the Shining Path. Strangers followed and monitored the family, and the threats described the family's activities and movements with great detail. In the demands, the guerrillas sought financial and material assistance (food, medicine, shoes). For a time, the family complied. When the family refused to comply, the guerillas threatened to "disappear" the family's children. Ms. De Brenner's mother resigned from her position as a nursing professor because

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of the threats. In some of the threats the Shining Path guerillas mentioned Ms. De Brenner, the oldest daughter of the family, by name. In other threats, they claimed the family was associated with the then-ruling party in Peru.

Also in 1982, the guerrillas published Ms. De Brenner's parents' names along with the names of approximately thirty other business or property owners on a "blacklist" posted throughout Ayacucho. According to Ms. De Brenner, the blacklist stated "death to the traitors" and "death to those who don't cooperate." In addition, the blacklist stated that the Shining Path deemed the persons on the list to be "not advancing the lives of the masses or merely as being uncooperative."

Even before the guerillas published the blacklist, they had murdered numerous people in Ayacucho. After Ms. De Brenner's family saw the list, they were afraid to leave their home. They frequently sought, and sometimes received, police protection. Police protection was often unavailable, however, because the police were occupied fighting the Shining Path guerrillas. Eventually, Shining Path guerrillas infiltrated the ranks of the army and the police and confusion reigned. The guerrillas murdered some of the people named on the blacklist. In 1989, the guerrillas published another blacklist that contained Ms. De Brenner's parents' names. Ms. De Brenner's name was not on either the 1982 or 1989 blacklists.

Although the guerrillas did not physically harm Ms. De Brenner or her immediate family, they burned her family's cocoa plantation and turned it into a cocaine plantation, destroyed a lumber business that her family had tried to develop, tortured and killed her mother's cousins, and tortured, raped and killed a number of family friends and acquaintances in and around Ayacucho. In the affidavit that accompanied her application for asylum, Ms. De Brenner reported the details surrounding much of the Shining Path's savagery towards her family and friends in Ayacucho. She described the torture, castration, and murder by skinning of prominent Ayacucho citizens in front of their families as well as crucifixions and less dramatic assassinations.

In 1983, Ms. De Brenner left the family home in Ayacucho because of the threats and violence and moved to Arequipa, Peru, to live with other relatives for five months. When the situation temporarily settled down in Ayacucho, she returned home. After three months, however, because of escalating violence, she moved to Lima to live with family friends. Eventually, all members of the family moved away from Ayacucho. The threats continued, however, as the Shining Path movement expanded from Ayacucho to encompass more of Peru.

While in Lima, Ms. De Brenner maintained a low profile and met few people. She did, however, meet and marry Roberto Leonardo Brenner-Galarza ("Mr.Brenner"), a close friend of the family that hosted her in Lima. Ms. De Brenner and Mr. Brenner had their first child, Romina Mariana Brenner-Guerrero ("Romina"). 1

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Mr. Brenner does not claim that he received any threats from Shining Path guerrillas before he married Ms. De Brenner. He did lose a job when a hotel/casino that he worked for suffered a loss of business due to Shining Path threats and bomb scares. He later worked as a sales representative for Pepsico, Co. For Pepsico, Co...

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