Navarro v. Immigration & Naturalization Serv., CRUZ-NAVARR

• Decision Date: 15 November 2000
• Docket Number: GRACIELA,EGOAVIL-VALENZUELA,CRUZ-EGOAVI,P,CRUZ-NAVARR,No. 99-70150,99-70150
• Citation: 232 F.3d 1024
• Parties: (9th Cir. 2000) MIGUEL, and SERGIO BRIANetitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1024

232 F.3d 1024 (9th Cir. 2000)

MIGUEL CRUZ-NAVARRO, GRACIELA EGOAVIL-VALENZUELA, and SERGIO BRIAN CRUZ-EGOAVIL, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-70150

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 12, 2000

Filed November 15, 2000

[Copyrighted Material Omitted] Karla L. Kraus, San Diego, California, for the petitioners.

William J. Howard, U.S. Department of Justice, Washington, D.C., for the respondent.

Petition for Review of a Decision of the Immigration and Naturalization Service. INS Nos. A70-154-353 A29-277-726 A29-277-727

Before: Robert Boochever, A. Wallace Tashima, and Richard Tallman, Circuit Judges.

TASHIMA, Circuit Judge:

Miguel Cruz-Navarro ("Cruz"), a native and citizen of Peru, with his family,¹ petitions for review of an order of the Board of Immigration Appeals ("BIA"). The BIA affirmed the decision of the Immigration Judge ("IJ"), denying Cruz both asylum and withholding of deportation underSS 208(a) and 243(h) of the Immigration and Nationality Act ("INA"). The BIA found that Cruz had not established that he was persecuted "on account of" a category protected under the INA when members of a guerilla group attempted to kill him.

We have jurisdiction under S 106(a)(1) of the INA, 8 U.S.C. S 1105a(a)(1), as amended by the transitional rules for judicial review under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996).² We deny the petition.

I. BACKGROUND

Petitioners are citizens and natives of Peru.³ Cruz was a member of the Peruvian Marines from 1976 to 1977. After his service with the Marines, Cruz joined the Peruvian Civil Guard, which later became the National Police, serving from 1980 to 1989. While a member of the National Police, Cruz served in Iquitos, Ayucucho, and Lima. Throughout his tenure with the National Police, Cruz often arrested and searched the homes of members of terrorist groups, such as the Sendero Luminoso ("Shining Path"), an anti-government guerilla organization.⁴ The Sendero Luminoso was especially active in Ayucucho, the town where Cruz was stationed from 1986 to 1987. Because police officers serving in Ayucucho were specifically targeted by the Sendero Luminoso, and a large proportion of them died or disappeared at the hands of the group,⁵ such officers were popularly referred to as "dead men."

In April 1989, while stationed in Lima, Cruz encounteredthree men outside a telephone booth. Cruz knew one of the men and suspected that the three were Sendero Luminoso guerillas. His suspicions were further piqued when he observed that one man held two or three hand grenades and another carried a cloth bag, which Cruz suspected contained weapons. Although Cruz was dressed in civilian clothing and unarmed, his acquaintances among the guerillas knew he was a member of the National Police. This man made eye contact with Cruz and smiled. Afraid of the armed men, Cruz hurried home.

After Cruz arrived at his home, he was notified by his brother that three terrorists had been arrested near the pay phone where Cruz saw the three armed men. Cruz later discovered that the three terrorists escaped. A few weeks later, Cruz's mother was warned that Sendero Luminoso believed Cruz "ratted" on the three men he encountered, leading to their subsequent arrest. She also heard that the Sendero Luminoso guerillas wanted to retaliate against Cruz for his supposed role as an informant.

On May 12, 1989, at approximately 10:00 p.m., while dressed in civilian clothes, Cruz noticed two men following him. Cruz saw one of the men reach into his coat as if he was about to draw a weapon. When Cruz ran, the two men began to fire their weapons at him shouting, "Policeman, you're going to die!" and "you're going to die, you informant, you're going to die." Cruz, however, was able to outrun the guerillas and escaped without harm.

Cruz reported the incident to his command post the next day. He asked the commanding officer for protection against the Sendero Luminoso. The officer informed him that the force would not be able to protect him because he did not hold a high enough rank. Indeed, the officer told him he "would have to protect [his] own life." Cruz then requested that he beallowed to retire from the force, but the request was denied. Fearing for his life, Cruz and his family fled Peru.

Cruz and his family entered the United States without inspection on or about May 30, 1989. The Immigration and Naturalization Service issued orders to show cause to petitioners on November 11, 1991, charging them with deportability pursuant to INA S 142(a)(1)(B), 8 U.S.C. S 1251(a)(1)(B) (renumbered as INA S 237(a)(1)(B), 8 U.S.C. S 1227(a)(1)(B)). Petitioners admitted the charges against them, conceded deportability, and applied for political asylum and withholding of deportation pursuant to SS 208(a) and 243(h) of the INA, and, in the alternative, for voluntary departure pursuant to S 244(e).

The IJ denied Cruz's application for asylum and withholding of deportation, finding that Cruz's testimony was credible, but that he failed to show he was persecuted "on account of" a category protected under the INA. The BIA affirmed, stating that Cruz did not fall under a category protected by the INA because "[i]t is well established that policemen or members of the military are not considered a social group eligible for asylum."

II. STANDARD OF REVIEW

We review de novo determinations by the BIA of purely legal questions concerning requirements of the INA. See Vang v. INS, 146 F.3d 1114, 1116 (9th Cir. 1998). We examine the BIA's factual findings under the substantial evidence standard. See Marcu v. INS, 147 F.3d 1078, 1082 (9th Cir. 1998) ("Our task is to determine whether there is substantial evidence to support the BIA's finding, not to substitute an analysis of which side in the factual dispute we find more persuasive."), cert. denied, 119 S. Ct. 1496 (1999). Review under the substantial evidence standard allows this court to reverse the BIA's decision only if the evidence "was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992); see also Borja v. INS, 175 F.3d 732, 735 (9th Cir. 1999) (en banc).

Moreover, where, as here, "the BIA conducts a de novo review of the record and makes an independent determination about whether relief is appropriate," we review the BIA's decision, rather than the IJ's decision.⁶ De Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997); see Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir. 1996); Yepes-Prado v. INS, 10 F.3d 1363, 1366-67 (9th Cir. 1993).

Finally, "where the IJ expressly finds certain testimony to be credible, and where the BIA makes no contrary finding, we `accept as undisputed' the testimony given at the hearing before the IJ." Singh v. INS, 94 F.3d 1353, 1356 (9th Cir. 1996) (quoting Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995)). Because the testimony presented by Cruz was deemed credible by the IJ, and that credibility finding was not disturbed by the BIA, we accept his testimony as true.

III. DISCUSSION

Under S 101(a)(42)(A) of the INA, 8 U.S.C.S 1158(b), the Attorney General may, in her discretion, grant asylum to an applicant determined to be a "refugee." See Korablina v. INS, 158 F.3d 1038, 1043 (9th Cir. 1998). Refugee status is established by evidence that an applicant is unable or unwilling to return to his or her home country because of past persecution or a well-founded fear of future 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 Korablina, 158 F.3d at 1043; Singh v. Ilchert, 63 F.3d at 1505.

A. Persecution "On Account of" a Protected Category

The BIA determined that Cruz's persecution by Sendero Luminoso guerillas was not "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. S 1101(a)(42)(A). Cruz does not claim persecution on account of his race, religion, or nationality. Rather, he claims he was persecuted on account of his membership in a particular social group and his political opinion.

1. Membership in a Protected Social Group

The BIA stated that "[i]t is well established that policemen or members of the military are not considered a social group eligible for asylum," citing Matter of Fuentes, 19 I. & N. Dec. 658, 1988 WL 235456 (BIA 1988). In Fuentes, the BIA refused to grant asylum to an El Salvadoran police officer because he made no showing that he was persecuted "on account of" a protected category. The BIA there stated, however, that "[i]t is possible that mistreatment occurring because of such a status in appropriate circumstances could be found to be persecution on account of political opinion or membership in a particular social group." Id. at 662. Fuentes, therefore, does not flatly preclude "police officers and soldiers from establishing claims of persecution or fear of persecution." Velarde v. INS, 140 F.3d 1305, 1311 (9th Cir. 1998). Rather, Fuentes suggests that persecution resulting from membership in the police or military is insufficient, by itself, to establish persecution on account of membership in a particular social group or political opinion.

Our cases have also drawn a distinction between current and former military or police service when determining the scope of a cognizable social group under the INA. Persons who are persecuted because of their status as a former police or military officer, for example, may constitute a cognizable social group under the INA. See Velarde, 140 F.3d at 1305 (persecution of a woman because of her former job as the bodyguard to the daughters of then-President Alan Garcia was on account of her membership in a particular social group as well as her...