Meza-Manay v. I.N.S.
| Decision Date | 11 December 1997 |
| Docket Number | P,MEZA-MANA,No. 96-70990,96-70990 |
| Citation | 139 F.3d 759 |
| Parties | 98 Cal. Daily Op. Serv. 2101, 98 Daily Journal D.A.R. 2944 Teofola Sofiaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Submitted * |
| Court | U.S. Court of Appeals — Ninth Circuit |
Amos Lawrence, San Francisco, California, for petitioner.
Ellen Sue Shapiro, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A93-140-152.
Before: BROWNING, PREGERSON, and HAWKINS, Circuit Judges.
Meza-Manay, a citizen of Peru, petitions for review of an order of the Board of Immigration Appeals ("BIA") denying her asylum application. We have jurisdiction under section 106(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1105a (1996). We grant the petition for review. We reverse and remand.
Meza-Manay is a thirty-nine-year-old native and citizen of Peru, who first entered the United States without inspection in the winter of 1981. She briefly returned to Peru in June of 1987, only to reenter without inspection that same summer with her twin sons, Renzo and Ranato, who were born in Peru. Currently, she resides in San Pablo, California with her thirteen-year-old sons.
On July 16, 1992 and October 20, 1992, Meza-Manay was convicted in the municipal court for Contra Costa County of petty theft. 1 She was placed in deportation proceedings pursuant to an Order to Show Cause issued on May 11, 1994, charging her with violating sections 241(a)(1)(b) and 241(a)(2)(A)(ii) of the INA, on the grounds that she entered this country without inspection and thereafter sustained two convictions involving moral turpitude not arising out of a single scheme of criminal misconduct.
Meza-Manay admitted her deportability but sought asylum. 2 She declined to designate a country of deportation should deportation become necessary. On his own motion, the IJ designated Peru as the country of deportation. The IJ also concluded that although deportation proceedings were not pending against the twins, they also were deportable because they entered the United States without inspection with Meza-Manay in 1987.
In support of her request for asylum, Meza-Manay testified that while in Peru, she expressed her opposition to the communist ideology of the terrorist group Sendero Luminoso ("Shining Path") to co-workers, friends, and neighbors. She also testified that she opposed the Shining Path's practice of murdering people who were not involved in politics. Even though Meza-Manay was not personally affiliated with any organizations that opposed the ideology of the Shining Path, she argues that the Shining Path imputed to her the political opinions of her husband, Issac Manay.
Issac Manay served as a member of the National Police of Peru from 1977 to 1989. In 1979, he joined the National Intelligence Service, which monitored and investigated terrorist activities perpetrated against the Peruvian government by the Shining Path. Issac Manay was responsible for the capture and incarceration of leaders of the Shining Path guerrillas.
In October 1981, a bomb planted in Issac Manay car exploded outside their home in Lima. The car and the first floor of the Manay home were destroyed by the blast. The upstairs windows and doors were damaged. At the time of the blast, Meza-Manay and her husband were on the second floor. 3 Fortunately, no one was injured in the explosion. Two hours after the explosion, Meza-Manay received a phone call from a representative of the Shining Path. The caller instructed her to Two weeks before the bombing, Issac Manay had captured a squad and some Shining Path leaders.
Because of the bombing, Meza-Manay and her husband abandoned their home in Lima and moved in with his parents in the district of Rimac in Lima (approximately thirty minutes from their home). One month after they moved to Rimac, a passing vehicle shot at Issac Manay as he was exiting the house. Meza-Manay, her husband, and her sister-in-law dived to the floor, thereby avoiding the bullets.
After this second attack, Meza-Manay and her husband decided to leave the country. They agreed that she would travel alone to the United States and that her husband and infant twin sons would eventually join her. When she reached the United States, Meza-Manay advised her husband to postpone the journey until their sons were old enough to survive the difficult and dangerous trip. Meza-Manay's husband and children remained in Meza-Manay's in-laws' home in Rimac. 4
For several years, Meza-Manay's husband and sons resided in Meza-Manay's in-laws' home without incident. In December of 1986, the Shining Path attempted to kidnap the twins. Shortly after the failed kidnapping, the Shining Path bombed Meza-Manay's in-laws' home. The explosion killed Meza-Manay's in-laws and seriously wounded her husband and some of his siblings. The twins were not in the house at the time of the bombing.
Concerned about the twins' safety, Meza-Manay returned to Peru. Meza-Manay and her husband agreed that the twins should leave the country. Her husband remained in Peru to support his twelve orphaned brothers and sisters. During her brief return to Peru, Meza-Manay's brother-in-law disappeared, presumably killed by the Shining Path guerrillas. Meza-Manay again entered the United States without inspection on or about June 1, 1987, this time in the company of the twins.
In 1989, Issac Manay left his post with the National Police and moved to Ecuador. Meza-Manay did not join her husband. Rather, after several years of living apart, Meza-Manay commenced divorce proceedings.
On August 8, 1995, the IJ denied Meza-Manay's application for political asylum under sections 208(a) and 243(h) of the INA. On August 16, 1995, Meza-Manay filed a timely notice of appeal with the BIA. On October 17, 1996, the BIA affirmed the IJ and dismissed the appeal on the grounds that Meza-Manay had not established past persecution or a well-founded fear of future persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion. Meza-Manay now appeals the BIA's final decision denying her political asylum. She does not appeal the denial of withholding of deportation.
We review the BIA's interpretations of law regarding the INA under the de novo standard. See Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988). We review the BIA's factual findings under the deferential "substantial evidence" standard and will uphold them unless the evidence compels a contrary conclusion. See Prasad v. INS, 101 F.3d 614, 616 (9th Cir.1996); INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992).
The parties dispute whether Meza-Manay's eligibility for political asylum presents an issue of law or fact. Meza-Manay argues that, because there is no dispute as to the credibility of her testimony, the sole issue on appeal presents a question of law-whether she is eligible for asylum under the INA. See Maldonado-Cruz v. Dept. of Immigration & Naturalization, 883 F.2d 788, 791 (9th Cir.1989) . On this basis, Meza-Manay contends that we should review the BIA's denial of asylum under the de novo standard. On the other hand, the INS argues that the BIA's decision to deny Meza-Manay's petition for asylum should be reviewed under the substantial evidence standard. We need not resolve this dispute because we find that, even if we review under the deferential "substantial evidence" standard, the BIA's decision determining that Meza-Manay is not eligible for asylum should be reversed. Because the BIA's decision denying Meza-Manay asylum is not supported by substantial evidence, we grant Meza-Manay's petition for review, reverse the BIA's decision denying Meza-Manay asylum, and remand this case to the BIA.
We have held that "[a]bsent an explicit finding that a specific statement by the petitioner is not credible, we are required to accept her testimony as true." Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994). Here, neither the IJ nor the BIA questioned Meza-Manay's credibility. 5 In resolving this appeal, we accept Meza-Manay's testimony as true.
To establish eligibility for asylum, an alien must show that he or she is a "refugee" within the meaning of section 101(a)(42)(A) of the INA, 8 U.S.C. § 1101(a)(42)(A). Refugee status is established by evidence of past persecution, or by evidence that the alien "has a 'well-founded fear of future persecution,' on account of race, religion, nationality, membership in a particular social group, or political opinion." Singh v. Ilchert, 63 F.3d 1501, 1505 (9th Cir.1995). "Eligibility for asylum may be based on past persecution alone." Id. at 1505-1506 (citing Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir.1993)). The determination whether an alien has a "well-founded fear of persecution" turns on subjective and objective components. See id. at 1506. The former component is satisfied if the fear is genuine. See id. at 1504 (citations omitted). The objective component requires a showing "by credible, direct, and specific evidence in the record, that persecution is a reasonable possibility." Id. at 1506 (internal citations and quotations omitted). The objective component may be satisfied "by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant." Id. (quoting Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988)).
On appeal, Meza-Manay argues that the BIA erred in finding that as a matter of law she was not persecuted in the past on account of an actual...
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