Lopez v. Ashcroft

• Decision Date: 03 May 2004
• Docket Number: No. 02-73357.,02-73357.
• Citation: 366 F.3d 799
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Cesar M. LOPEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

366 F.3d 799

Cesar M. LOPEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73357.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2004.

Filed May 3, 2004.

Evelyn Zneimer, Los Angeles, CA, for the petitioner.

Joshua E. Braunstein (argued) and Anh-Thu P. Mai, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent.

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

Before SILVERMAN, GOULD, and BEA, Circuit Judges.

GOULD, Circuit Judge:

Petitioner Cesar Margarito Lopez is a 47-year old native of Guatemala. He entered the United States on February 28, 1991, without inspection by an immigration officer. The Immigration and Naturalization Service (INS)¹ placed Lopez in deportation proceedings by filing an Order to Show Cause (OSC) on June 28, 1994, charging Lopez with entry without inspection into the United States.

Lopez appeared before an Immigration Judge (IJ) with counsel, conceded the factual allegations in the OSC and his deportability, and stated his intention to apply for asylum and withholding of deportation. On April 26, 1999, the IJ issued his decision finding Lopez deportable and ineligible for asylum and for withholding of deportation. The IJ concluded that Lopez did not offer evidence establishing that Lopez had been persecuted on account of a protected ground. Lopez was, however, granted voluntary departure.

Lopez appealed to the Board of Immigration Appeals (BIA), which dismissed Lopez's appeal in a per curiam opinion on September 24, 2002, with Board Member Espenoza dissenting. The BIA reasoned that: (1) Lopez had not established past persecution; (2) changed country conditions in Guatemala justified denial of Lopez's claims; and (3) a humanitarian grant of asylum was unwarranted. Lopez timely petitions for review.

Because Lopez's deportation proceedings were initiated on June 28, 1994, and his final deportation order was issued on September 24, 2002, we have jurisdiction under 8 U.S.C. § 1105a(a)(1), as amended by the transitional rules under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. 104-208, 110 Stat. 3009 (Sept. 30, 1996). We grant the petition and remand the issue of changed country conditions in Guatemala as well as Lopez's application for a humanitarian grant of asylum to the BIA for reassessment. We also remand Lopez's application for withholding of deportation and relief under the Convention Against Torture to the BIA for its consideration in the first instance.

I

Lopez testified before the IJ that he left Guatemala because he was receiving death threats from leftist guerrillas opposed to the Guatemalan government. He gave the following information in his written asylum application and in testimony at his April 26, 1999 hearing before the IJ:

Lopez was a member of the Guatemalan army, and joined the civil patrol for one year in 1987. His duties in the civil patrol included informing the Guatemalan army about the location of the guerrillas. Lopez also worked as a storekeeper on the plantation of a wealthy landowner in San Marcos, Guatemala.

Lopez first encountered violence in 1988, when guerrillas went to Lopez's workplace, tied his hands, locked him in a grain warehouse and set the warehouse on fire. Lopez stated in his written asylum application:

On 1988, while I was working, the leftists extremists came into the store house and tried to steal everything, after it, they fired the house, they maltreated me, they obligued (sic) me to put my hands up and locked me in while the house was on fire. Once all the machinery (sic) started to explote (sic) I didn't know what to do, I tried everything to escape and with the help of some neighbors I could escape. I tried to fight the fire and to safe (sic) the merchandise of my employer, but it was imposible (sic), the fire was so enormous that I couldn't do much.

In his testimony before the IJ, Lopez clarified that he was locked in a grain warehouse, that the guerrillas were from "ORPA,"² and that his hands were "tied up" during this 1988 incident. Lopez suffered burns on his hands and back as a result of this attempt on his life.

ORPA guerrillas tried again to kill Lopez in 1990 and 1991, telling Lopez that he should be helping the guerrillas take property from the rich and not working for the rich. The guerrillas also harassed Lopez because of his family's participation in the Guatemalan army. Guerillas also went to Lopez's home to look for him, forcing Lopez into hiding.

Lopez's father was an administrator on the same plantation where Lopez worked. Lopez testified that the guerrillas did not want to see Lopez's family working for wealthy people. Guerillas kidnapped Lopez's father in 1979 because he would not cooperate with them. Lopez's father escaped, but continued to endure harassment from the guerrillas. Lopez's mother-in-law and two brothers-in-law were assassinated by the guerrillas because they refused to cooperate with them. ORPA guerrillas held recruitment meetings at the plantation where Lopez and his father worked, where the guerrillas told local residents that the guerrillas needed their cooperation and that the residents should not work for wealthy people.

Lopez and his wife illegally entered the United States in 1991, leaving his three children in Guatemala. Lopez later brought all three of his children to the United States. Lopez stated in his asylum application, and supported in his testimony, that he fears persecution by the guerrillas if he returns to Guatemala, and that the Guatemalan government would be unable to control the guerrillas' activities.

II³

We accept Lopez's testimony as true because neither the IJ or the BIA made an adverse credibility finding. Ruano v. Ashcroft, 301 F.3d 1155, 1159 (9th Cir.2002). We will uphold the BIA's denial of asylum if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. (internal quotation marks omitted).

To qualify for asylum, Lopez must establish that he is unwilling or unable to return to Guatemala "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." Ruano, 301 F.3d at 1159 (internal quotation marks omitted). "Establishing past persecution triggers a rebuttable presumption of a well-founded fear of future persecution." Id. (internal quotation marks omitted).

Because Lopez claims eligibility for asylum based on past persecution, he must provide evidence of "(1) an incident, or incidents, that rise to the level of persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either unable or unwilling to control." Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000) (internal quotation marks omitted). As in Chand, the main issues are "whether [Lopez] has shown that the harm he suffered rises to the level of persecution, and whether he has shown that he was persecuted on account of a protected ground."⁴ Id.

"Persecution is the infliction of suffering or harm upon those who differ... in a way regarded as offensive." Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir.2002) (internal quotation marks omitted). We have held that physical harm constitutes persecution. Chand, 222 F.3d at 1073 ("Physical harm has consistently been treated as persecution."). Further, "[w]here an applicant suffers such harm on more than one occasion, and ... is victimized at different times over a period of years, the harm is severe enough that no reasonable factfinder could conclude that it did not rise to the level of persecution...." Id. at 1073-74.

Lopez testified credibly that guerrillas in 1988 locked him in a warehouse and set it on fire. Lopez further testified that the guerrillas tried to kill him in 1990 and 1991. These attempts to murder are a form of physical harm. We have determined that such assaults threatening life itself constitute persecution. Baballah v. Ashcroft, 335 F.3d 981, 987-88 (9th Cir.2003) ("There is no question that persistent death threats and assaults on one's life ... rise to the level of persecution within the meaning of the [Immigration and Nationality] Act.") (internal quotation marks omitted); see also Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir.1998) ("[R]ecruitment attempts and death threats are sufficient to show persecution under the Immigration and Nationality Act.") (internal quotation marks omitted). Lopez's credible testimony alone is sufficient to establish past persecution. Id.

Faced with this evidence, the BIA nonetheless concluded that "the harm [Lopez] was subjected to does not rise to the level of persecution" because "his injuries were not that severe," noting that Lopez did not seek medical treatment after he was burned in the warehouse fire. We disagree. The credible testimony made plain that Lopez had been placed in a burning warehouse by guerrillas, bound so he could not escape absent help, and had suffered additional threats on his life from the same group. That Lopez did not seek medical treatment for the burns he suffered is hardly the touchstone of whether his treatment by guerrillas amounted to persecution. The BIA's determination that Lopez did not suffer persecution was not supported by substantial evidence. The evidence compels the conclusion that Lopez was persecuted under our traditional standards.

But persecution alone is not sufficient to qualify for asylum. Lopez also had to show that the persecution occurred because of a protected ground. More specifically, under the statutory standard, we must next determine whether Lopez was persecuted "on account of" a protected ground. Because Lopez contends that he was persecuted on account of his political opinion, Lopez must establish that he held a political opinion, and that he...