Lim v. INS
| Decision Date | 04 November 1999 |
| Docket Number | No. 98-70683,98-70683 |
| Citation | 224 F.3d 929 |
| Parties | (9th Cir. 2000) MELENCIO LEGUI LIM, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent |
| Court | U.S. Court of Appeals — Ninth Circuit |
COUNSEL: Melencio Legui Lim, Pro per, San Francisco, California, petitioner.
Ann Varnon Crowley, Department of Justice, Washington, D.C., for the respondent.
Petition for Review of an Order of the Board of Immigration Appeals I&NS No. A72-144-473
Before: Alfred T. Goodwin, Mary M. Schroeder, and Arthur L. Alarcon, Circuit Judges.
Petitioner Melencio Legui Lim petitions from the dismissal by the Board of Immigration Appeals ("BIA") of his appeal from an immigration judge's ("IJ") denial of asylum and denial of withholding of deportation. We hold that the BIA erred in denying asylum eligibility, but we affirm the BIA's denial of withholding of deportation.
Melencio Lim entered the United States in August of 1991 and voluntarily approached the INS in September of 1992 to apply for asylum. At his asylum hearing before the IJ, he conceded deportability and testified to the following account. From 1972 until 1987, Lim served as a police officer for the government of the Philippines. In 1978 he joined the intelligence unit, for whom he infiltrated Communist student groups and subsequently investigated the dissident New People's Army ("NPA"), the military arm of the local Communist Party.
As an intelligence officer, Lim investigated NPA "Sparrow Units," which specialize in the propaganda killings of public officials, and which were suspected in the deaths of several police officers over a two-month span in 1980-81. During a dragnet, Lim participated in a fire fight with a Sparrow Unit and its leader, Mario Subona. Lim's participation contributed to the arrests of Subona and several leaders of Subona's organization, and Lim subsequently revealed his own identity when he took their statements and confessions. Lim remained with the intelligence unit, and from 1984-87 he investigated assassinations allegedly committed by the NPA. In 1985, Lim testified in open court against Subona and other subversive leaders, who apparently avoided conviction due to the trial judge's exclusion of the confessions.
Shortly thereafter, Lim appeared on an NPA death list and began receiving death threats. In response, Lim received police protection and limited his public travel. Still, over the next years, Lim continued to receive threatening phone calls as well as threatening letters tied with a black ribbon, which signifies an NPA death threat. In 1987, to escape the threats, Lim left the police department and began practicing law in the Philippines. The threats continued, however, and Lim hired a personal bodyguard.
Then, from 1990-91, three of Lim's former colleagues in the Mario Subona investigation were murdered one-by-one. Although neither Lim nor his family was ever confronted or attacked, in May of 1991 Lim began to notice that he was being followed by unidentified men. In August of 1991, Lim left his wife and four children in the Philippines and fled to the United States. As noted, Lim then voluntarily approached the INS and requested asylum.
At his hearing before the IJ, Lim testified and offered two affidavits from men purporting to be supervising officers in the Philippines. These affidavits confirm Lim's role in the Subona investigation and Lim's subsequent appearance on the NPA death list.
Without questioning Lim's credibility or the validity of the affidavits, the IJ rejected Lim's claims for asylum and withholding of deportation. The IJ found no past persecution, because "nothing ever happened to [Lim] on account of these threats." The IJ further found that Lim demonstrated no wellfounded fear of future persecution, because Lim lived in the Philippines without harm for six years after receiving the threats, and because "the strength of the NPA has been substantially diminished in the Philippines" and thus "there would appear to be no reason why [Lim] might not be able to relocate in another area of the Philippines."
On appeal, the BIA noted (1) that the IJ correctly recognized Lim's six-year period of no harm; (2) that former policemen, "as a social group," are not subjected to reprisals; (3) that Lim's family remains in the Philippines unmolested; and (4) that there was "no reason to disturb" the IJ's finding that Lim could internally relocate. In response to these mitigating factors, the BIA affirmed the IJ and held that Lim's fear was not well founded and that Lim did not risk a clear probability of future persecution.
This court has jurisdiction under S 106(a) of the Immigration and Nationality Act (the "Act"), 8 U.S.C.S 1105a(a). On petition for review, we determine whether substantial evidence supports the BIA's determinations. See 8 U.S.C. S 1105a(a)(4); Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1993). We will reverse the BIA if no reasonable factfinder could find the petitioner ineligible for asylum. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). We review questions of law de novo. See Harpinder Singh v. Ilchert, 63 F.3d 1501, 1506-07 (9th Cir. 1995).
Our review is limited to the BIA's opinion, except where the BIA adopted the IJ's reasoning. See Castillo v. INS, 951 F.2d 1117, 1120 (9th Cir. 1991). Further, because neither the IJ nor the BIA made negative credibility findings, we are "required to accept [Lim's] testimony as true. " Leiva-Montalvo v. INS, 173 F.3d 749, 750 (9th Cir. 1999) (citations omitted).
We hold that Lim sufficiently raised issues on appeal, and thus we decline to dismiss. Read liberally, Lim's pro se opening brief, although unburdened by authority, suggests that Lim seeks asylum because he suffered past political persecution and fears future political persecution by an armed and aggressive anti-government group. His supplemental brief, with which he was assisted by counsel, contains citations to authorities and more traditional legal argument. The Government does not suggest that the issues on appeal are unclear and, indeed, the Government has fully and capably briefed those issues.
It is true that Lim's opening brief fails to fulfill several formal requirements, including failing to provide either a jurisdictional statement or citations to authority. See Fed. R. App. P. 28(a)(4), (9). Courts, however, frequently refuse to dismiss pro se appeals for formal defects where the opposing party suffers no prejudice. See, e.g., Balisteri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1988) (); U.S. v. Sanders, 434 F.2d 219 (4th Cir. 1970) (per curiam) (). Although courts do not offer a briefing service, courts also do not bar the doors to pro se pleaders.
Under S 208(a) of the Act, 8 U.S.C. S 1158(a), Lim is eligible for asylum if he is a "refugee," i.e., if he is unable or unwilling to return to his home country "because of persecution or 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. S 1101(a)(42)(A); see EliasZacarias, 502 U.S. at 481. We hold that Lim qualifies for asylum under S 208(a) of the Act, because he has a well-founded fear of future persecution on account of political opinion.
Assuming that Lim risks persecution (see infra S B.2), such persecution would be "on account of political opinion" imputed to him by his persecutors. In Briones v. INS, 175 F.3d 727 (9th Cir. 1999) (en banc), we addressed the case of a Filipino government informer who, like Lim, allegedly appeared on NPA death lists and received death threats in letters tied with black ribbon. See id. at 728. We held then, as we do now, that retaliation against the informer was indeed on account of imputed political opinion and not merely personal revenge. See id. at 730. Briones thus supports our conclusion that political revenge and political persecution are not mutually exclusive.
Our en banc companion opinion in Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en banc), strengthens the conclusion that mixed motivations can effect asylum eligibility. Notably, the Borja en banc court reversed and withdrew the very opinion that the Government cites here for support. See Borja v. INS, 150 F.3d 1223 (9th Cir. 1998), withdrawing 139 F.3d 1251 (9th Cir. 1998). Our en banc court held that extortion motivated partly by greed could qualify as persecution on account of political opinion, provided that the extortion had a partly political motivation. See Borja , 175 F.3d 736-37. The opinion describes this conduct as "extortion plus." Id. at 736. Under Borja and Briones, the threats to Lim are accurately viewed as "revenge plus"--revenge partly motivated by (and thus on account of) imputed adverse political opinion.
We further hold that the evidence compels the conclusion that Lim's fear of persecution is "well founded." For a fear to be well founded, it must be both subjectively genuine and objectively reasonable. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). The BIA did not question Lim's credibility or the genuineness of his fear. Rather, the BIA denied asylum on the grounds that Lim's fear is unreasonable, that is, that performance on the death threats is not so likely as to cause a reasonable person to fear.
To effect a well-founded fear, a threat need not be statistically more than fifty-percent likely; the Supreme Court has suggested that even a one-tenth possibility of persecution might effect a...
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