Desir v. Ilchert

• Citation: 840 F.2d 723
• Decision Date: 26 May 1988
• Docket Number: No. 86-2064,86-2064
• Parties: In the Matter of Fritz DESIR, Petitioner-Appellant, v. David N. ILCHERT, District Director, Immigration & Naturalization Service, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 723

840 F.2d 723

In the Matter of Fritz DESIR, Petitioner-Appellant, v. David N. ILCHERT, District Director, Immigration &amp Naturalization Service, Respondent-Appellee.

No. 86-2064.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1987.

Decided March 7, 1988.

As Amended on Denial of Rehearing May 26, 1988.

Robert D. Baizer, Yonemura & Yasaki, Oakland, Cal., for petitioner-appellant.

Susan L. Kamlet and Larry J. Gallagher, Asst. U.S. Attys., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, TANG and NELSON, Circuit Judges.

TANG, Circuit Judge:

We examine whether beatings, imprisonment, and assaults by government security forces for the purpose of extortion may constitute persecution on account of political opinion within the meaning of sections 101(a)(42)(A) and 243(h)(1) of the Immigration and Nationality Act (the Act). Because we answer in the affirmative, we reverse the district court's denial of an alien's petition for a writ of habeas corpus.

I

Fritz Desir, a citizen and native of Haiti, was detained in Miami on September 11, 1981 and placed in exclusion proceedings under section 212(a)(20) of the Act, 8 U.S.C. Sec. 1182(a)(20) (1982). Desir had fled Haiti aboard a boat which was towed into Miami by the United States Coast Guard. Desir had supported himself in Haiti by fishing and by selling curios to tourists in Port-au-Prince. In exchange for the right to fish in certain waters, Desir was expected to pay bribes to the Haitian security forces known as the Ton Ton Macoutes. Desir introduced expert testimony and documentary evidence to the effect that the Haitian government operated as a "kleptocracy," or government by thievery, enforced by the Ton Ton Macoutes' terrorizing and extortion of powerless citizens. Persons who resisted the extortion were marked as political subversives and subjected to official repression.

Desir was arrested, assaulted, and threatened by the Macoutes on several occasions from 1979 to 1981 as a result of his failure to pay bribes and his competition with Macoutes-approved merchants and fishermen. The first such incident occurred in June 1979. Captain Monday, an official associated with the Macoutes, was sailing by in a small boat when he saw Desir and his partner in their fishing boat and stopped them. Captain Monday boarded their boat, told the men that they were not to be fishing in that area and then struck Desir some fifty times with a wooden stick.

In 1980, Desir testified he was arrested "for speaking out." The petitioner stated he had been a member of a small organization, the Sans Manman, meaning "without mother." ¹ The immigration judge found the organization appeared to consist of a group of three young men, who spoke out against the Government, though only privately.

Two later incidents in 1981 involved encounters with another official, Captain Sauval, also of the Ton Ton Macoutes. In the first instance, Desir and his partner were asleep in their fishing boat when they were awakened at gunpoint by Captain Sauval. Sauval bound the men and took them to jail. Desir testified that during the time of his arrest, a period of some two to three weeks, he was beaten with a wooden stick and warned that he would be shot if "caught" again. Desir stated the Ton Ton Macoutes beat him because he did not pay money to them.

Later that same year, Captain Sauval again threatened and assaulted Desir. Desir was near the waterfront dock in Port-au-Prince attempting to sell to tourists small wooden tables he had made. When Captain Sauval recognized Desir, he threatened him with a gun, demanded a "contribution" and fired upon him when refused. Desir testified that Captain Sauval again took him into custody and threatened to shoot him if he was ever seen again on the beach front.

After the incidents involving Captain Sauval, Desir moved to another county where he believed that the security forces would not harass him. He lived in that area for three months without incident, although there also, he stated "you had to be associated with [the] police, the Ton Ton Makute (sic), to make a living." Thereafter, he fled on the first available boat for the United States. Desir fears that his return to Haiti would lead to a recurrence of the earlier abuses against him by the Ton Ton Macoutes, and he has submitted documentary evidence to the effect that Haitians who are deported to Haiti often face death, imprisonment and torture.

The INS placed Desir in exclusion proceedings pursuant to section 236 of the Act, 8 U.S.C. Sec. 1226 (1982), and charged him as being excludable under section 212(a)(20) of the Act, 8 U.S.C. Sec. 1182(a)(20) (1982) (immigrant not in possession of valid entry document). Desir sought asylum under sections 208 and 101(a)(42)(A) (1982) of the Act, 8 U.S.C. Secs. 1158, 1101(a)(42)(A) and prohibition against deportation ² under section 243(h)(1) of the Act, 8 U.S.C. Sec. 1253(h) (1982). The Immigration Judge (IJ) found Desir's testimony "creditable," although noting some inconsistency, and accepted all of his statements as true. Nevertheless, the Immigration Judge found that Desir had failed to carry his burden of proof to establish entitlement to asylum or prohibition of deportation. Thus, the IJ found Desir excludable as charged and ordered him deported.

The Board of Immigration Appeals (BIA) affirmed the decision of the Immigration Judge on the basis that the Ton Ton Macoutes harassed Desir not because of his race, religion, nationality, membership in a particular social group, or political opinion, but instead, because they wished to extort money from him for personal reasons. The BIA reasoned that Desir had not shown that his refusal to pay the bribes was an expression of political opinion rather than the product of other motivations such as inability to pay. The BIA further noted that Desir had failed to show that the Macoutes interpreted his failure to pay bribes as politically motivated, or that he was a member of a particular social group composed of persons who refused to pay bribes to the Macoutes.

On April 18, 1986, Desir filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California. ³ The district court found substantial evidence in support of the BIA affirmance of the denial of Desir's application and denied the petition on June 2, 1986. The district court and the BIA both took judicial notice of the fact that the regime headed by President Jean-Claude ("Baby Doc") Duvalier ended on February 6, 1986, and that the new government had ordered the Ton Ton Macoutes disbanded. Desir timely appealed. We have jurisdiction under 28 U.S.C. Sec. 2253.

II

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Grooms v. Keeney, 826 F.2d 883, 885 (9th Cir.1987); Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). The factual findings underlying the BIA's denial of the applications for asylum and prohibition of deportation are reviewed under the substantial evidence standard. Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987); McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.1981). Where, however, the agency determinations turn on purely legal questions concerning the requirements of the applicable statutes, "[t]he questions before us are questions of law, which we review de novo." Lazo-Majano v. INS, 813 F.2d 1432, 1434 (9th Cir.1987). See also, Florez-De Solis v. INS, 796 F.2d 330, 333 (9th Cir.1986).

III

Desir contends that the evidence amply demonstrated past persecution on account of political opinion within the meaning of the Act. ⁴ We agree.

A.

To establish eligibility for asylum under section 208, an alien must demonstrate that he or she has been persecuted or has a "well-founded fear of persecution" on account of one of the enumerated factors. See 8 U.S.C. Secs. 1101(a)(42)(A), 1158(a). As we have indicated, the test for refugee status includes both a subjective and objective component. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1283 & n. 11 (9th Cir.1984). The subjective component is satisfied if the fear is "genuine." Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir.1985). The objective component requires a showing, "by credible, direct, and specific evidence in the record," Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986), that persecution is a "reasonable possibility," INS v. Cardoza-Fonseca, --- U.S. ----, 107 S.Ct. 1207, 1217-18, 94 L.Ed.2d 434 (1987). The evidentiary facts necessary to support a finding of persecution on one of the statutory grounds may be established by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.1985), aff'd, --- U.S. ----, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Blanco-Comarribas v. INS, 830 F.2d 1039, 1042-43 (9th Cir.1987).

The statutory term "persecution" or "well founded fear of persecution" has been defined in this Circuit as encompassing more than just restrictions or threats to life and liberty. Cordoza-Fonseca, 767 F.2d at 1452. Most simply, we have stated that persecution involves "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive." Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969). Persecution is found "only when there is a difference between the persecutor's views or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate." Hernandez-Ortiz, 777 F.2d at 516. Thus, in determining whether the threats and violence of the Ton Ton Macoutes constituted political persecution we may examine the motives and perspective of both the victim and...