Deloso v. Ashcroft
| Citation | 393 F.3d 858 |
| Decision Date | 02 August 2004 |
| Docket Number | No. 02-72317.,02-72317. |
| Parties | Jessie Aromin DELOSO, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Lizbeth A. Galdamez and Michael P. Karr, Sacramento, CA, for the petitioner.
Jeffrey J. Bernstein and John M. McAdams, Jr., United States Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondent.
Beth Werlin and Trina Realmuto, Washington, DC, for amicus curiae American Immigration Law Foundation.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A70-778-153.
Before: B. FLETCHER, TROTT and FISHER, Circuit Judges.
Jessie Aromin Deloso, a native and citizen of the Philippines, petitions for review of the denial of his request for asylum and withholding of deportation. Deloso also challenges the summary affirmance procedures of the Board of Immigration Appeals ("BIA") and has moved for a stay of voluntary departure pending judicial review.
Deloso unquestionably suffered what would appear to be persecution: within the space of two years, he was shot at by unknown gunmen, attacked by a group of men carrying knives and set upon on another occasion by a man armed with a pipe; he received death threats shortly after the assassination of another member of his political party who held local office; and, even after he relocated to another part of the Philippines, he was followed by a man he identified as the son of his father's political enemy such that he did not feel safe staying in one location for very long. The question presented here, however, is whether any of these actions were on account of his political opinion.
Although the police never found out who was responsible for these acts, Deloso believes that Apolino Advincula — the head of a criminal organization and also a Communist party member and hit man — was the most likely instigator. Advincula had two potential motives. First, as a Communist party henchman, he often did "favors" for Communist politicians by ridding them of opposition party candidates. Deloso's father, Sixto Deloso — who was elected as a councilor of their hometown of Bacoor shortly before the incidents affecting Deloso — was such a person, as a member of the Strength of Democracy party and as a politician who was interested in reforms that might have interfered with Communist party efforts to entice youths to join the party with the lure of illicit drugs. Moreover, Deloso worked as the youth leader of his father's campaign. Advincula therefore could have been asked to frighten Sixto Deloso and his politically active son, causing the entire family to flee Bacoor.
On the other hand, Advincula could have been motivated by a more personal desire: revenge. Sixto Deloso, before running for councilor, had served as the leader of a nonpartisan neighborhood association and, in that role, had informed the police about Advincula's criminal enterprises. Consequently, Advincula spent three weeks in jail.
The Immigration Judge ("IJ") apparently assumed that Advincula was responsible for the events but that he was motivated only by vengeance. The IJ made this determination, however, without the benefit of two en banc opinions that clarified our law on cases involving mixed motives such as those present here. See Borja v. INS, 175 F.3d 732, 736(9th Cir.1999) (en banc); Briones v. INS, 175 F.3d 727, 729 (9th Cir.1999) (en banc).1 These opinions held that an applicant need only "produce evidence from which it is reasonable to believe that the harm was motivated, at least in part," by a protected ground. Borja, 175 F.3d at 736 (emphasis added) (quoting In re T-M-B-, 1997 WL 80988, Interim Dec. No. 3307(BIA Feb. 20, 1997)). The record compels the conclusion that the harms inflicted here were at least in part on account of Deloso's political opinion. There is no question that Advincula was a hit man for the Communist party and thus could have been acting at the behest of his political masters. Further, direct evidence linked the attacks to the Communist party — the party's hammer-and-sickle emblem was left at two of the locations where incidents occurred. In addition, the incidents began shortly after Sixto Deloso was elected councilor and occurred during the period in which another Strength of Democracy member, the mayor of Bacoor, was assassinated. Further, one attack occurred when Deloso and his father were en route to a political meeting.
Because the Delosos' unrefuted testimony and other record evidence compel a finding that the harm Deloso suffered was, at least in part, on account of his political opinion, we grant the petition and remand for further proceedings.
The following facts are drawn from the testimony of Deloso and his father. Although the IJ noted several inconsistencies between the testimony and Deloso's written application, he did not make an explicit credibility finding. We therefore have to credit the testimony as true. See Lopez v. Ashcroft, 366 F.3d 799, 802 (9th Cir.2004).
Deloso lived with his parents and seven siblings in Bacoor from 1974 until the spring of 1988. In 1988 all of Deloso's family — except for Deloso and one of his sisters who lived in Manila — left the Philippines due to Sixto Deloso's fears for their safety. Sixto Deloso had good cause to be frightened: shortly after he was elected as councilor of Bacoor as a candidate for the democratic party, "Strength of Democracy," he and his family were attacked, their store was ransacked and they received death threats.
The campaign of terror apparently began in February 1987, the same month in which Sixto Deloso was elected as councilor on a platform pledging, among other things, "total eradication of communism in the entire municipality." On their way to a political meeting, Deloso, his brother Marlon and Sixto Deloso were ambushed. Their jeep was riddled with bullets and flipped over due to the driver's fright. The passengers suffered a few bruises, but no other injuries. Although Deloso and his father testified that they did not know who was to blame, documents within the record implicate the Communists. Deloso and his brother Marlon in their respective asylum applications blamed the attack on the military arm of the Communist party, the New People's Army, and Sixto Deloso in an affidavit claimed that "communist gunmen" were responsible.
The next month, in March 1987, an unknown person ransacked and stole food from the family's store, located in the Queens Row neighborhood in which they lived. Deloso and his father stated they believed that Communists were responsible because the marauders left behind a calling card — a Communist emblem, the hammer and sickle, drawn on the wall of the store.
A few months later, in June 1987, unknown assailants assassinated another Strength of Democracy party member, the mayor of Bacoor, Lito Miranda. Deloso stated he believed that one of the other political parties — and most likely the Communist party — was to blame for Miranda's death. Sixto Deloso testified that people suspected Advincula was to blame, but that no one knew for sure. In an affidavit, he also claimed that the Communists had assassinated Miranda.
After Miranda's killing, Sixto Deloso started to think that he should resign his political office. His worries were compounded several months later, when he and his family began to receive death threats. In August 1987, an unsigned letter was found in the gate to the family's yard, stating "beware because you're next." The letter included 10 crosses that Deloso's father interpreted to represent himself, his wife and their eight children.
Later that month, Sixto Deloso found a funeral garment, called a barong tagalog, on the porch of the Deloso home. The garment was covered with sand and stones, which Sixto Deloso interpreted as suggesting that "you are dead, you will wear the barong tagalog, and they will dig a hole and later ... your corpse will be ... put there inside the hole, and then you will be covered by sand and gravel." Jessie Deloso confirmed that leaving the garment was a "sign that you're going to be killed and you're next." Although the translation made his testimony somewhat confusing, Sixto Deloso did state that a hammer-and sickle emblem was also found with or near the barong tagalog.2
Deloso and his father testified that they reported these incidents to the police, even though they had to travel two hours to reach the nearest police station. They also stated that, because of the distance and lack of resources, they believed that the police were unable or unwilling to provide much long-term support to protect them from the people or groups threatening them. Consequently, shortly after receiving the barong tagalog, most of the family decided to relocate before the threats could be carried out.
Deloso nonetheless remained in Bacoor until two further incidents occurred. In July 1988, he was chased by men, who appeared to be intoxicated and who were carrying knives and a large pipe. One man was able to punch Deloso before he could escape. Then, in late 1988, Deloso was assaulted one evening by unknown persons, who were supposedly sent by the Advincula family to kill him. A group of men followed Deloso after he finished playing basketball, apparently with one of the youth leagues he started as part of his father's political campaign. The men had knives and set upon him on a dark street corner. The friends with whom Deloso had been playing basketball came upon the melee, and the attackers fled. Deloso's father, who by that time was living in the United States, then recommended that Deloso leave Bacoor.
Deloso took his father's advice and moved to Manila, which is about an hour away from Bacoor and home to one of Deloso's sisters. In Manila, he observed...
To continue reading
Request your trial
-
Fon v. Garland
...U.S.C. § 1101(a)(42)(A). If Petitioner demonstrates past persecution, "then fear of future persecution is presumed." Deloso v. Ashcroft , 393 F.3d 858, 863 (9th Cir. 2005). Here, the BIA concluded that Petitioner did not suffer past persecution and, without a presumption of future persecuti......
-
Canales-Vargas v. Gonzales, 03-71737.
...sufficient circumstantial evidence of a persecutor's identity or motives. Navas, 217 F.3d at 657; see also Deloso v. Ashcroft, 393 F.3d 858, 865-66 (9th Cir.2005) (holding that circumstantial evidence of motive may include, inter alia, the timing of the persecution and signs or emblems left......
-
Kaur v. Wilkinson
...If a petitioner demonstrates that she has suffered past persecution, "then fear of future persecution is presumed." Deloso v. Ashcroft , 393 F.3d 858, 863 (9th Cir. 2005). To demonstrate past persecution, Kaur must establish that (1) her "treatment rises to the level of persecution;" (2) "t......
-
Garcia-Milian v. Holder
...I.N.S. v. Elias–Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis added); see also, e.g., Deloso v. Ashcroft, 393 F.3d 858, 864 (9th Cir.2005) (“An applicant need not present direct evidence of a persecutor's motives if there is compelling circumstantial evidence.”......