Lazo-Majano v. I.N.S.

• Decision Date: 02 April 1987
• Docket Number: No. 85-7384,LAZO-MAJAN,P,85-7384
• Citation: 813 F.2d 1432
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Olimpiaetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Page 1432

813 F.2d 1432

55 USLW 2569

Olimpia LAZO-MAJANO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 85-7384.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 9, 1986.

Decided April 2, 1987.

R. Lee Hagelshaw, San Francisco, Cal., for petitioner.

Eileen A. Carty, Richard M. Evans, Elouise Rosas, Washington, D.C., for respondent.

Petition for Review of an Order of the Board Immigration Appeals.

Before PREGERSON, POOLE and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

Olimpia Lazo-Majano appeals from orders denying her asylum under 8 U.S.C. Sec. 1158(a) and withholding of deportation under 8 U.S.C. Sec. 1253(h). We reverse the Board of Immigration Appeals and remand for proceedings not inconsistent with this decision.

Events. Olimpia Lazo-Majano is a thirty-four year old woman. She is the mother of three children. In 1981, when she was twenty-nine, her husband left El Salvador for political reasons: he had been in the rightist paramilitary group known as ORDEN; when he quit he was wanted by the guerrillas and distrusted by the government. Olimpia had always lived in the same small town. For five years she had been working as a domestic for another woman, getting a day off every fifteen days. In the middle of April 1982, she received a telephone call from Sergeant Rene Zuniga who had known her since childhood. He asked her to wash his clothes. Olimpia agreed.

On her day off during the next six weeks Olimpia worked for Zuniga at Zuniga's place. Zuniga then pointed out that Olimpia's husband was no longer in El Salvador and raped her. In Olimpia's words: "With a gun in his hand he made me be his."

In the following months Olimpia accepted Zuniga's domination. She continued to wash for him on her days off. She accepted taunts, threats, and beatings from him. He broke her identity card in pieces and forced her to eat the pieces. He dragged her by the hair about a public restaurant. He pummeled her face, causing a blood clot to form in one eye; she thought that she had lost the eye. Olimpia became nervous, preoccupied, and depressed, ate little, and became thin and frail. She wanted to escape her tormentor but saw no way of doing so.

Central to the situation was the fact that Zuniga was a sergeant in the Fuerza Armada, the Armed Force which is the Salvadoran military. Zuniga used his gun in forcing Olimpia to submit the first time. On another occasion Zuniga held two hand grenades against her forehead. On another occasion he threatened to bomb her. When he referred to her husband, Zuniga said that if he returned Zuniga himself would cut him apart, kill both Olimpia and her husband and say that they were both subversives. Zuniga told Olimpia that it was his job to kill subversives.

Zuniga said to Olimpia that if she ever told on him he would have her tongue cut off, her nails removed one by one, her eyes pulled out, and she would then be killed. As Olimpia recalls his statement, he said: "And I can just say that you are contrary to us; subversive." When he was angry with her in the restaurant, he told a friend from the police "in front of all the other people in the restaurant" that she was a subversive and that was why her husband had left: "because she was a subversive."

Olimpia believed the Armed Force would let Zuniga carry out his threat. She believed that in 1979 a nineteen-year old boy she knew by sight had been tied, tortured and killed by the Armed Force; that in 1981 the husband of a neighbor had been taken away in a truck at night with fifteen others and killed by the Armed Force; that the Armed Force had raped "young college girls," as had Zuniga himself. In her view there was nobody in El Salvador that could stop the Armed Force from doing such things. In her experience when Zuniga was dragging her by the hair in the restaurant no one helped because where the Armed Force is concerned, "no one will get involved."

In 1982 Olimpia escaped from Zuniga, left El Salvador and illegally entered the United States. In January 1983, Olimpia was ordered to show cause why she should not be deported for entry without inspection. See 8 U.S.C. Sec. 1251(a)(2). She admitted deportability and applied for political asylum, claiming fear of persecution by Zuniga. Her request was denied by Immigration Judge William F. Nail on March 23, 1984. On May 9, 1985, The Board of Immigration Appeals upheld Judge Nail's decision and dismissed her appeal. It found that "the evidence attests to mistreatment of an individual, not persecution" and cited In re Pierre, 15 I & N Dec. 461 (BIA 1976) (a wife threatened with death by her husband, a high Haitian official, did not show persecution for a political opinion even though the government of Haiti would not restrain her husband). The Board declared as to the plight of Olimpia that it was "not unsympathetic with this deplorable situation" but "the fact remains that such strictly personal actions do not constitute persecution within the meaning of the Act."

Statutory Framework. Two statutory schemes are available to an alien who resists deportation:

Section 243(h) of the Immigration and Nationality Act prohibits deportation of an alien whose "life or freedom would be threatened ... on account of ... political opinion." 8 U.S.C. 1253(h). To satisfy section 1253(h), an alien must show a "clear probability" of persecution--that is, that it is "more likely than not" that he or she will be persecuted. INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984); Vides-Vides v. INS, 783 F.2d 1463, 1466 (9th Cir.1984). This court reviews a denial of an application for withholding of deportation under the standard that the denial is to be upheld if supported by substantial evidence. Vides-Vides, 783 F.2d at 1466.

Section 208(a) of the Refugee Act of 1980 gives the Attorney General discretion to grant asylum to refugees. 8 U.S.C. Sec. 1158(a). A "refugee" is an alien who is unwilling or unable to return to his or her former country "because of persecution or a well-founded fear of persecution on account of ... political opinion." 8 U.S.C. Sec. 1101(a)(42)(A). The "well-founded" fear standard is more generous than the "clear probability" standard for withholding of deportation, and the Board has an obligation to apply the standard set by the statute. Bolanos-Hernandez v. INS, 749 F.2d 1316, 1326 (9th Cir.1985). The Board in this case has not distinguished the two standards. As will be apparent, the failure is not at issue here because this case turns on the purely legal question concerning the meaning of "political opinion," and whichever standard is applied in this case, the petitioner should prevail. If refugee status is established, we review the denial of asylum for an abuse of discretion. Vides-Vides, 783 F.2d at 1466. Because Olimpia applied for asylum after her deportation hearing, her application is also considered a request for withholding of deportation. See 8 C.F.R. Sec. 208.3(b).

Analysis. Neither Immigration Judge Nail nor the Board doubted Olimpia's story. It must be assumed that they found her testimony credible. See Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986); Canjura-Flores v. INS, 784 F.2d 885, 889 (9th Cir.1985). They reached their unfavorable decision on the basis that Olimpia had not met the legal requirements of the applicable statutes. The questions before us are questions of law, which we review de novo.

Persecution is stamped on every page of this record. Olimpia has been singled out to be bullied, beaten, injured, raped, and enslaved. Olimpia's initial acquiescence does not alter the persecutory character of her treatment. That she continued to return to Zuniga's place after his initial attack upon her presents a pattern, all too familiar, of a victim identifying with the aggressor under conditions of terror. She lacked "sufficient ego-strength, self-confidence and willpower" to "escape or cry out for help." Cf. United States v. Winters, 729 F.2d 602, 605 (9th Cir.1984) (Pregerson, J.). The persecution has been conducted by a member of the Armed Force, a military power that exercises domination over much of El Salvador despite the staunchest efforts of the Duarte government to restrain it. Zuniga had his gun, his grenades, his bombs, his authority and his hold over Olimpia because he was a member of this powerful military group.

Uncontradicted evidence, then, pointed to both a clear probability of persecution and a well-founded fear of persecution. Olimpia relates that Zuniga said to her that if she ever left him, "[H]e would look for me, for my person, in all El Salvador." El Salvador is a small country. We take judicial notice of reports that persons being deported there from the United States have been tortured and have been killed. We are not in a position to verify these reports. We are in a position to say that they are sufficiently credible to show that Olimpia, the target of a police officer's persecution for her political opinion, would be in serious jeopardy if forced to return to her native land.

Was Olimpia, however, persecuted by an agent of the government because she had a political opinion, or was the relation of Olimpia and Zuniga purely personal? When "political opinion" in the sense used by the two statutes is analyzed, it must mean "the political opinion of the victim as seen by the persecutor." At times in the history of persecution the victims have been persons who did not share the prejudices and enthusiasms of their persecutors. Their opinions have been politically unacceptable only because of the opposition and hostility the persecutors have read into their silence or noncommitment to the persecutors' opinions. Cf. Bolanos-Hernandez v. INS, 749 F.2d 1316, 1324 (9th Cir.1985). So in this case, if the situation is seen in its social context, Zuniga is asserting the political opinion that a man has a right to dominate and he has persecuted Olimpia to...