Duarte de Guinac v. INS

• Decision Date: 08 June 1999
• Docket Number: No. 98-70030.,98-70030.
• Citation: 179 F.3d 1156
• Parties: Mildred Yesenia DUARTE DE GUINAC, and Mauro Jose Guinac Quiej, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

179 F.3d 1156

Mildred Yesenia DUARTE DE GUINAC, and Mauro Jose Guinac Quiej, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 98-70030.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 1999.

Filed June 8, 1999.

COPYRIGHT MATERIAL OMITTED

Erika Anne Kreider, Tucson, Arizona, for the petitioners.

Frank W. Hunger, Linda S. Wendtland, Joan E. Smiley, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for the respondent.

Before: KRAVITCH,¹ REINHARDT, and T.G. NELSON, Circuit Judges.

REINHARDT, Circuit Judge:

Mauro Jose Guinac Quiej ("Guinac") and Mildred Yesenia Duarte de Guinac ("Duarte"), husband and wife, petition this court for review of a final order of the Board of Immigration Appeals ("BIA" or "Board") dismissing on the merits their consolidated appeals from the order of an Immigration Judge ("IJ"). The IJ's order had denied their applications for asylum and withholding of deportation. We have jurisdiction under 8 U.S.C. § 1105a.² We conclude that Guinac has a well-founded fear of persecution on account of his race. Accordingly, we grant the petition for review.³

I. General Legal Principles

The Attorney General has discretion to grant an alien asylum if the alien is determined to be a "refugee," within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A). Refugee status is established in most instances by evidence that an alien is unable or unwilling to return to his home country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Singh v. Ilchert, 63 F.3d 1501, 1505 (9th Cir.1995).

An alien's well-founded fear of persecution must be both subjectively genuine and objectively reasonable. See Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998). An alien satisfies the subjective component by credibly testifying that he genuinely fears persecution. Id. The objective component can be established in two different ways. First, if an asylum applicant establishes that he has been subjected to persecution in the past, there is a presumption that a well-founded fear of future persecution exists. 8 C.F.R. § 208.13(b)(1)(i). The burden then shifts to the INS to show by a preponderance of the evidence that country conditions have changed to such an extent that the petitioner no longer has a well-founded fear that he would be persecuted if he were to return. Id. Second, an applicant can show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution. Ghaly v. INS, 58 F.3d 1425, 1428 (9th Cir.1995). The applicant may make this showing either through the production of specific documentary evidence or by credible and persuasive testimony. See Ramos-Vasquez v. INS, 57 F.3d 857, 862-63 (9th Cir.1995).

The standard for withholding of deportation is a more stringent one than that for asylum eligibility; however, if the evidence demonstrates a clear probability that the applicant would be persecuted were he to be deported to his home country, the Attorney General must withhold deportation. See Korablina, 158 F.3d at 1044-1045. That is, the applicant must demonstrate that it is "more likely than not" that he will be persecuted on account of one of the five enumerated factors were he to return. 8 C.F.R. § 208.16(b)(1). Some forms of past persecution trigger a legal presumption that the applicant has shown a clear probability of persecution, so as to entitle him to withholding of deportation. See 8 C.F.R. § 208.16(b)(2); Vallecillo-Castillo v. INS, 121 F.3d 1237, 1240 (9th Cir.1996). To rebut this presumption, the INS must show by a preponderance of the evidence that country conditions have so changed that it is no longer more likely than not that the applicant would be persecuted there. Id.

II. Facts

Guinac is a citizen of Guatemala and a member of the indigenous Quiche ethnic group. Quiches, like members of other indigenous groups in Guatemala are commonly referred to as "Indians." Guinac concedes deportability, but seeks asylum and withholding of deportation based on his experiences in the Guatemalan military. In support of his application for asylum, Guinac credibly testified⁴ that after his forcible conscription into the Guatemalan army in July of 1994, he was frequently beaten and insulted by superior officers on account of his race.⁵ During his military service, he was one of a group of six indigenous ("Indian") draftees who were regularly singled out for physical abuse and, while being beaten, were told by their lieutenant that they were a "bunch of chickens," "sons of bitches," and "traitors to the fatherland." In addition, Guinac's commander, Sergio Camargo, told Guinac that he and the other indigenous soldiers were a bunch of "Indian pigs." According to Guinac, the Spanish word for Indian (indio) is a derogatory term for an indigenous person, which implies worthlessness. Guinac testified that the beatings he suffered were not a punishment for something he did or failed to do, but were explicitly motivated by his indigenous status—that is, because he is an "Indian." After ten months of enduring such treatment, Guinac complained to his commander, Camargo, telling him that he could not stand the abuse of authority and the violent attacks. Camargo, in response, told Guinac that it was not his place to complain about how he was being treated and threatened Guinac with death were he to cause trouble or desert the military.

Finally, Guinac could not tolerate the mistreatment any longer; he deserted the military to escape the racially-motivated beatings and verbal abuse. He went into hiding with an uncle in a small town, Transfiguracion, composed primarily of indigenous people. For a period of nearly five months following Guinac's desertion, armed military men repeatedly came to his wife's house looking for him. The soldiers told his wife, Duarte, that they would kill her husband when they found him. When they failed to locate Guinac, the soldiers threatened to kill Duarte. Guinac and Duarte then fled Guatemala for the United States, out of fear for their lives.

III. The BIA's Decision and Our Holdings

The BIA dismissed Guinac's appeal from the IJ's order after conducting a de novo review of the record and issuing a decision on the merits; accordingly, our review is limited to that decision. See Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir.1996). We will reverse the BIA's determination that Guinac is not eligible for asylum or entitled to withholding of deportation only if, on the basis of the evidence in the record, a reasonable factfinder would be compelled to conclude that the requisite fear of persecution existed. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

In denying Guinac's application, the Board first stated that mandatory military service without more, even if against one's will, is not a ground for asylum. The BIA then held that the type of racially-motivated treatment Guinac testified to constituted discrimination rather than persecution, adding only that "there is no support for the contention that he was persecuted." Finally, the BIA stated that because Guinac did not show that his desertion constituted a demonstration of political opinion and that he would face torture or execution for his desertion, the requisite nexus between the suffering Guinac might face in the future and a statutorily protected ground did not exist.

Guinac does not assert that conscription alone suffices for a grant of asylum; accordingly, we do not consider the first ground relied on by the BIA for its decision. Further, we do not consider whether the BIA erred in finding that Guinac's fear of persecution on account of political opinion was not well-founded. Instead, we hold that the evidence compels the conclusion that Guinac has a well-founded fear of persecution on account of race.

It is undisputed that Guinac satisfied the subjective requirement of a well-founded fear; the IJ found his testimony that he feared persecution on account of race should he return to Guatemala to be credible. See Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) ("Singh III"). The critical issue we discuss, therefore, is whether Guinac established "past persecution" and thereby met the objective requirement.⁶

With respect to the question whether Guinac suffered past persecution on account of his race, the evidence in the record compels a contrary conclusion to that reached by the BIA. From the time he was conscripted into the Guatemalan military, petitioner Guinac witnessed and was the object of repeated beatings and severe verbal harassment by his Hispanic superiors. He was explicitly targeted for this oppression because he was an Indian, as his superiors made clear by combining the beatings with verbal insults referring to his indigenous status, e.g., "Indian pig." Guinac testified that while he was not alone in receiving these beatings, only he and the five other indigenous soldiers were subjected to such treatment. When Guinac vehemently complained to his superior officer regarding the race-based beatings, he was told that it was not his place to object and was warned against deserting. Guinac finally deserted, because he could not stand the beatings any longer. Shortly thereafter, Guinac fled Guatemala because of fear of summary execution based on his having deserted the military.

The BIA expressed sympathy for Guinac and stated that it does not condone the actions of the Guatemalan military, but found him ineligible for asylum because it interpreted the treatment he endured as "discrimination," not "persecution." The BIA's determination that Guinac's...