Aguilera-Cota v. U.S. I.N.S.
| Decision Date | 21 September 1990 |
| Docket Number | No. 88-7389,P,AGUILERA-COT,88-7389 |
| Citation | 914 F.2d 1375 |
| Parties | Roberto Antonioetitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rosemary J. Esparza, Los Angeles, Cal., for petitioner.
Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div., Michael C. Johnson, Sp. Asst. U.S. Atty., Los Angeles, Cal., for respondent.
Petition for Review of an Order By the Board of Immigration Appeals.
Before NORRIS, REINHARDT and TROTT, Circuit Judges.
Roberto Antonio Aguilera-Cota petitions for review of the decision of the Board of Immigration Appeals (the "BIA") holding him ineligible for asylum. We grant the petition for review, reverse the BIA's decision and remand so that the Attorney General may exercise his discretion under section 208(a) of the Refugee Act of 1980, 8 U.S.C. Sec. 1158(a) (1990) (the "Act").
Roberto Antonio Aguilera-Cota fled El Salvador in March of 1984. Before he fled the country, Aguilera worked for the Central Board of Elections during the 1983-1984 presidential elections. As a government employee, he had been issued a government identification card. Although he was politically neutral, he did not feel safe working for the government. In early March, Aguilera received a threatening letter with his name on it. The handwritten, anonymous note was left under his door at home, and it warned him to quit his job or pay the consequences. Aguilera destroyed the note. Several days later, an unidentified man came to his house looking for him. The man questioned his sister concerning Aguilera's whereabouts and his job with the government. He told her he was going to return. Aguilera, fearing for his life, fled El Salvador a few days later, and on March 18, 1984, entered the United States. Aguilera's cousin had been killed by gunshots around the time that Archbishop Romero was assassinated, and his niece had been wounded by bullets when the guerrillas and the military engaged in combat in front of his home. Before he entered government service, Aguilera's house had been ransacked by the military at one o'clock in the morning, and he had twice been forced off buses and interrogated and detained by the army.
We review the BIA's factual findings under the "substantial evidence" standard. Rivas v. INS, 899 F.2d 864, 866 (9th Cir.1990) (citing Dias-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986)). "Questions of law, such as whether the BIA applied the appropriate legal standard, are reviewed de novo." Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988).
Under Cardoza-Fonseca v. INS, 767 F.2d 1448 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), an alien qualifies for refugee status and is eligible for asylum if he can demonstrate a well-founded fear of persecution. The "well-founded fear" standard has both an objective and subjective component. The objective component " 'requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution.' " Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir.1988) (quoting Rebollo-Jovel v. INS, 794 F.2d 441, 443 (9th Cir.1986)). "That the objective facts are established through credible and persuasive testimony of the applicant does not make those fears less objective." Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.1984). The subjective component requires that the applicant have a genuine concern that he will be persecuted. Id.
It is not seriously contested that the petitioner has a subjective fear of persecution. However, here, as in so many similar asylum cases, the principal question we must confront is whether that subjective fear has a sufficient objective basis. To the extent that any question exists with respect to the genuineness of petitioner's fear, it is answered by our decision regarding the objective component.
In Cardoza-Fonseca, 767 F.2d at 1453, aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434, we held that "asylum applicants must present 'specific facts' through objective evidence to prove either past persecution or 'good reason' to fear future persecution." 1 Documentary evidence establishing past persecution or threat of future persecution is usually sufficient to satisfy the objective component of the well-founded fear standard. Id. at 1453. But we have also recognized that refugees frequently do not possess documentary evidence regarding such events. "Authentic refugees rarely are able to offer direct corroboration of specific threats." Bolanos-Hernandez, 767 F.2d at 1285. Where the evidence is not available, the applicant's testimony will suffice if it is credible, persuasive, and specific. "If the alien's own testimony about a threat, when unrefuted and credible, were insufficient to establish the fact that the threat was made, it would be 'close to impossible for [any political refugee] to make out a case for [asylum.]' " Id. (quoting McMullen v. INS, 658 F.2d 1312, 1319 (9th Cir.1981)).
Aguilera's testimony reveals that his fear of persecution was based primarily on two closely related events: In March 1984, while working for the Central Board of Elections, he received a threatening note. The typed anonymous note warned him to quit his job or pay the consequences. Several days later, a stranger came to his house looking for him. The stranger asked his sister many questions about him, including a number of questions relating to his employment with the government, and told her that he was going to return. Aguilera fled El Salvador several days later. 2
The BIA and the Immigration Judge (the "IJ") committed a number of legal errors in reaching the conclusion that Aguilera did not have a well-founded fear of persecution.
First, the BIA and the IJ failed to recognize that Aguilera fell within the definition of refugee because of his imputed "political opinion." Refugees are persons who flee their native land because of "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. Sec. 1101(a)(42)(A) (1990). Even though Aguilera did not express a "political opinion" in the typical fashion, he fits within the statutory definition of that term under the doctrine of imputed political opinion. Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir.1987). The threats were based on his employment and presumed support of the government. The anonymous note warned him to quit his government job or pay the consequences. In short, he was specifically threatened because of his perceived adherence to the government's cause.
As we have previously held, Id. Thus, it is not crucial whether the individual actually espoused the views of the government or whether he was a high level or low level employee; what is determinative is what the persecutors thought. See also Rivas, 899 F.2d at 867 () In this case, the undisputed evidence is that Aguilera's status as a government employee caused the opponents of the government to classify him as a person "guilty" of a political opinion. In the conditions of civil unrest which persist in El Salvador, Aguilera and others similarly situated are not always given the opportunity to clarify such misunderstandings before termination with prejudice occurs. 3
The second significant legal error was the use by the BIA and the IJ of an improper standard in evaluating Aguilera's testimony. As a result, they failed to give the proper weight to testimony essential to his case. 4 A review of the IJ's decision reveals that in assessing whether Aguilera met the objective component of the well-founded fear test, the IJ imposed a far more stringent burden on petitioner than we deemed permissible in Cardoza-Fonseca and Bolanos-Hernandez. This error materially affected the outcome of the proceedings.
It is clear that Aguilera's testimony concerning the threatening note and the visit by a stranger shortly thereafter constitutes "specific evidence" sufficient to "support a reasonable fear that the petitioner faces persecution." Rodriguez-Rivera, 848 F.2d at 1002. The IJ, however, did not believe that the note should be accorded much weight because the petitioner did not know who wrote it and because he did not retain it. Aguilera testified that the note was not signed and that he destroyed it after reading it. There is nothing novel about the concept that persecutors cannot be expected to conform to arbitrary evidentiary rules established by the Immigration and Naturalization Service; neither Salvadoran leftists nor Middle Eastern terrorists, such as members of the PLO or the Hezbollah, have been given adequate notice that our government expects them to sign their names and reveal their individual identities when they deliver threatening messages. We have previously tried to make it clear that asylum applicants are not required to produce documentary evidence of events such as those involved here. As we have said, "Persecutors are hardly likely to provide their victims with affidavits attesting to their acts of persecution." Bolanos-Hernandez, 767 F.2d at 1285; see also ...
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