Borja v. I.N.S., 97-70272

Citation175 F.3d 732
Decision Date30 April 1999
Docket NumberNo. 97-70272,97-70272
Parties99 Cal. Daily Op. Serv. 3111, 1999 Daily Journal D.A.R. 4065 Teresita Moral BORJA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Robert B. Jobe, Hilary A. Han, Law Offices of Robert B. Jobe, San Francisco, California, for petitioner Teresita Moral Borja.

Donald E. Keener, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent Immigration and Naturalization Service.

Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A73-396-835.

Before: HUG, Chief Judge, and BROWNING, SCHROEDER, PREGERSON, REINHARDT, O'SCANNLAIN, TROTT, KLEINFELD, HAWKINS, THOMAS, and SILVERMAN, Circuit Judges.

Opinion by Judge TROTT; Dissent by Judge O'SCANNLAIN.

TROTT, Circuit Judge:

The New People's Army ("NPA") is a violent, revolutionary Communist group which actively opposes the Philippine government. The NPA has a well-documented history of political violence, including the murder of its opponents. The 1995 Country Profile issued by our State Department says that "the NPA ... is known to engage in killings and other violence."

In testimony found by an immigration judge to be credible, consistent, forthright, and "sincere in all respects," petitioner Teresita Moral Borja related a series of hostile encounters with the NPA in Manila in her native Philippines. She argues that her unchallenged testimony compels the conclusion that the NPA persecuted her, and that they did so-at least in part-on account of her political opinion; and she maintains that this persecution qualifies her under our laws for political asylum. Because we agree with her analysis of the compelling effect of her evidence, we grant this petition for review.

I

On September 22, 1992, armed NPA operatives confronted Ms. Borja while she was working in her parents' business and shoe factory. These men were interested in accomplishing two related objectives.

First, they asked Ms. Borja to join and support their organization. She refused, telling them she was "pro-government" and that she would not enlist. Because the facts of this confrontation are essential to our conclusion, we quote verbatim from her testimony:

Q. (By Attorney Gadda) What happened after [you told them you were pro-government and refused to join]?

A. (By Ms. Borja) They get mad at me. They pointed a gun at me and then I thought they were going to kill me because I argued with them that I don't want their, I don't their organization because they kill people, women and children and they get mad and I thought they were going to kill me. They pointed a gun at me and I told them just that I will pay taxes if I needed to so that they would not kill me. (emphasis added)

The NPA responded by demanding 3,000 pesos from her as "revolutionary taxes":

Q. (By Mr. Thompson for the INS) Did they ask (sic) you for money after you turned down-you refused to join them?

A. (By Ms. Borja) Yes.

Q. And that amount was 3,000 pesos?

A. Yes.

Q. Did you pay them the 3,000 pesos immediately?

A. Yes, I did.

The men left, telling her they would return monthly for another payment and that she would be killed if she called the police or the "authorities," apparently meaning the military. The men surfaced every month to collect on their demands. Ms. Borja believed they were armed on each occasion.

In February 1993, the NPA doubled its demand to 6,000 pesos. When Ms. Borja said she did not have that amount of money and could not pay, the NPA agents became angry, beat her, put a gun to her head, and slashed her with a knife. This wound left a scar which she displayed on request to the immigration judge at her hearing. After suspending their attack, the men departed, telling her they would murder her if she didn't get the money. In short order, Ms. Borja sought medical treatment (including stitches for her arm), moved out of her house, went into hiding ("I was so scared that any time they might find me and kill me"), and sought a visa to flee the country.

At her hearing, her attorney asked her if she was aware of the recent amnesty the government supposedly had arranged with the NPA. She acknowledged the arrangements, but said, "it's not working because the rebels ... wouldn't agree to conditions." Her attorney then asked her if she had considered moving to another part of the Philippines to escape the NPA's threat. Her considered response was, "No, because the NPAs are everywhere and they have this vast network of intelligence and they can find people." She concluded her testimony with this plea: "I would like to beg Your Honor to please let me stay in this country because if I go back, I am sure they will kill me."

II

In the posture that this case comes to us, we must answer one central question: Does the evidence Ms. Borja presented to the BIA compel the conclusion that the NPA subjected her to persecution on account of her political opinion under the Immigration and Nationality Act. 8 U.S.C. §§ 1101(a)(42)(A) (West Supp.1998). 1 See INS v. Elias-Zacarias, 502 U.S. 478, 479, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). An answer in the affirmative entitles her to eligibility for asylum. The BIA's contrary determination "can be reversed only if the evidence presented by [Ms. Borja] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." Id. at 481, 112 S.Ct. 812. However, as the Second Circuit observed in Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.1994), "[t]he plain meaning of the phrase 'persecution on account of the victim's political opinion,' does not mean persecution solely on account of the victim's political opinion. That is, the conclusion that a cause of persecution is economic does not necessarily imply that there cannot exist other causes of the persecution." As the United Nations' Handbook on Procedures and Criteria for Determining Refugee Status says, "[W]hat appears at first sight to be primarily an economic motive for departure may in reality also involve a political element, and it may be the political opinions of the individual that expose him to serious consequences, rather than his objections to the economic measures themselves." Osorio, 18 F.3d at 1029 (quoting U.N. Handbook at §§ 62-64). 2 To quote the Board's decision in this case, "An applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future. However, the applicant must produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground." In re T-M-B-, Interim Dec. No. 3307 (BIA Feb. 20, 1997). See also Singh v. Ilchert, 63 F.3d 1501, 1509-10 (9th Cir.1995) ("Persecutory conduct may have more than one motive, and so long as one motive is one of the statutorily enumerated grounds, the requirements have been satisfied.").

III

Given this test, we conclude that Ms. Borja's undisputed testimony compels the conclusion that she was persecuted by the NPA, at least in part, on account of her political opinion. In contrast to the record in Elias-Zacarias, which did not contain any clear evidence of the guerillas' motive, either direct or circumstantial, Ms. Borja articulated her political opposition to the NPA as the reason for her refusal to join. We know that the NPA agents acted in direct response to her statement of political opposition and revulsion at their methods because their immediate reaction was to "get mad" and point a gun at her. When Ms. Borja saw their anger at her vocal resistance, she thought they were going to kill her at that very moment. The record shows that she interrupted that distinct possibility by changing the subject to their demand for money: "They pointed a gun at me and I told them just that I will pay taxes if I needed to so that they would not kill me." Under these telling circumstances, we believe that no reasonable factfinder could fail to see the role her outspoken political opinion played both then and thereafter in what happened to her at the hands of the NPA. We agree with the Board's majority in their en banc opinion that she demonstrated "economic extortion," but we find no support for their conclusion that the extortion was exclusively "non-political." With all respect to the majority of the divided Board, Member Rosenberg's analysis in dissent is correct: "The case before us is an example of what we might call 'extortion plus.' " Had she not interjected her willingness to pay, the evidence strongly suggests that the NPA would have taken her life as a response to her political statement. Quite possibly, other NPA episodes of robbery and extortion have been purely economic in nature, but this one clearly had mixed motives.

We note that Ms. Borja did not waver from her political refusal to join the NPA, remaining in their eyes their political adversary. Once Ms. Borja drew a political line in the sand, her every contact with the NPA became a life or death situation, and the probability of death became almost certain in February 1993, when she could not and did not pay her "taxes." As the immigration judge wrote in his decision,

The NPA members then became angry and started slapping and hitting [Ms. Borja]. One of them threatened her with a gun. The other took out a knife and cut her right shoulder and/or right arm area. They also told her that they would be back and that she was to have the money ready when they returned; if not she would be killed.

Printed Oral Decision of the Immigration Judge, August 8, 1995.

Wounded and no longer able to buy her life with money as she had in September, no reasonable person could doubt the sincerity and validity of her fear of immediate death at the vengeful hands of her political enemy, fear that drove her from her home and into hiding. Had she joined...

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